SCOTUS backs Texas law requiring porn site age-verification

The Supreme Court issued a 6-3 ruling on Friday that Texas may legally require websites hosting adult content to verify the ages of all users. The state has clear authority to require age verification to prevent children from freely accessing sexually explicit materials, according to Justice Clarence Thomas’ majority opinion, joined by the court’s five other conservative justices.

The nation’s highest court ruled Friday that requiring users trying to access pornographic content to prove they are not children does not directly regulate the protected speech of adults. Adults don’t have a First Amendment right to avoid age verification, and the law’s intent is clearly to restrict minors’ access, according to the majority opinion. Any burdens on free expression caused by the law are incidental and merit only intermediate scrutiny, the ruling added.

What was the dissenting opinion? Justice Elena Kagan penned a dissenting opinion joined by Justices Ketanji Brown Jackson and Sonia Sotomayor. Kagan started by confirming that children accessing sexually explicit material can cause great harm. While children have no constitutional right to view pornographic material, adults do, and Texas’ law unduly burdens that right, she argued. Kagan described age verification as having a chilling effect on free speech consumption, deterring adults from engaging with pornographic material. Online age verification isn’t like flashing an ID to get into a club, she argued. Users turn over information about themselves and their viewing habits to a website, having no idea where it will go, she said. That personal data could be sold to a third party or publicly released if the website is hacked or subpoenaed, Kagan added.

The dissent ended by calling for Texas not to undervalue free expression and to find alternative means to protect minors while not burdening the right of adults to receive free expression. A state may want to limit access to pornographic materials for all because of its negative social perception, but explicit content is nonetheless protected by the First Amendment, the dissent noted.

What is the background of the case? A 2024 Texas law required online users to submit a photo ID or credit card information before accessing pornographic material to verify that users are at least 18 years old. State attorneys argued that the law protects minors from the long-proven harm pornography causes people of all ages, according to the state’s Supreme Court brief. The law levied a $10,000 fine for every day a porn site operated without age verification in the state, with an additional $250,000 fine if a minor accessed sexual material because the website lacked age verification.

The American Civil Liberties Union sued the state on behalf of the Free Speech Coalition, an adult industry trade group, alleging that the law violated Texans’ First Amendment rights. The law mainly burdens adult access to constitutionally protected expression, according to the ACLU’s filing with SCOTUS. The law required all adults to submit personally identifying information to access sensitive content online, which poses unique security and privacy concerns, the filing argued. The case ultimately revolves around how much the government may burden free expression that's viewed as socially unpopular, the filing added. 

Dig deeper: Read Liz Lykins’ report about lawmakers across the country facing opposition to protecting children from sexual content.