The Supreme Court weighed whether an explosion in online pornography requires repudiating the court’s precedents concerning sexual content as the justices Wednesday heard arguments in a challenge to Texas’s age-verification law for porn websites.
A majority of the justices suggested the concept of an age-verification requirement could survive First Amendment scrutiny even as the court seemed inclined to send the Texas law back to a lower panel to apply some higher standard of review.
Several of the court’s conservatives asserted that the age verification may be states’ only real option to protect children from adult websites, because the content-filtering methods the court endorsed as an alternative two decades ago are no longer viable.
“Kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with,” said Justice Amy Coney Barrett, who has seven children.
“So I think that the explosion of addiction in new online porn has shown that content filtering isn’t working,” she continued.
“It was very difficult for 15-year-olds, whatever, to get access to the type of thing that is available with a push of a button today. And the nature of the pornography, I think, has also changed in those 35 years,” Chief Justice John Roberts said.
The law, passed by the Texas legislature in June 2023, required sites that host adult content to verify that their users are over the age of 18.
Nearly 20 other states have passed similar laws related to adult content, and age verification has become an increasingly popular option for states seeking to limit young children’s access to social media.
The Texas law also requires sites to post a warning that pornography is “potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.”
Free Speech Coalition, a trade association representing the adult entertainment industry, sued Texas Attorney General Ken Paxton (R) in August 2023. Backed by the American Civil Liberties Union, the group has argued the law violates the First Amendment by creating barriers for adults to access websites that feature adult content.
Paxton began enforcing the law last February, bringing lawsuits against major porn companies, including Pornhub’s parent company, Aylo, for failing to comply with the age verification requirement. As a result, Pornhub disabled service in the Lone Star state.
The trade association insists its lawsuit should follow a line of Supreme Court cases in which the justices have held pornography restrictions to an exacting standard.
“Texas’s law is even more problematic than its failed federal predecessors,” said Derek Shaffer, Free Speech Coalition’s attorney.
In those precedents, the high court applied “strict scrutiny,” the toughest test judges use when weighing constitutional challenges. It requires showing a law is the least restrictive means, and the justices in 2004 pointed to an alternative of content-filtering methods that allow parents to block content on their kids’ devices.
But on Wednesday, several conservative justices questioned whether to overrule its decades-old endorsement, given the technological shifts that have made adult content more accessible than ever.
“There are cases where the technological developments caused the court to reconsider the precedents that were developed under, not quite a horse and buggy days, but prior to very significant changes. Now, why isn’t that a pertinent factor to consider here,” Roberts said.
Justice Clarence Thomas noted the previous cases involved “squiggly lines on cable TV” and “a world of dial-up internet.”
“You would admit, though, that we’re an entirely different world,” Thomas said.
The Biden administration has also joined the case, arguing the court should rule the law is subject to a stricter standard while clarifying the First Amendment does not prevent states, as well as Congress, from enacting laws to prevent children from accessing content, including via age verification requirements.
“Now, the verification requirement has become less burdensome, and experience has shown that other approaches are not working,” said Principal Deputy Solicitor General Brian Fletcher.
Congress has expressed growing concern about children’s online safety. In July, the Senate passed the Kids Online Safety Act (KOSA) with overwhelming bipartisan support.
The measure sought to create regulations for the features tech companies offer kids and counter the addictive nature and mental health effects of these platforms. However, the legislation stalled in the House over free speech concerns.
The Supreme Court’s conservatives on Wednesday raised concern that declaring Texas’s law subject to strict scrutiny may cause the legislation to fail when it returns to lower courts. Several justices floated making clear that age-verification requirements are generally permissible so long as they don’t become overly burdensome on adult access.
The liberal justices indicated the court should perhaps keep its review of the case limited to deciding the appropriate test and leave it for the lower courts to analyze the specific facts of the Texas law.
“That is strict scrutiny,” said Justice Sonia Sotomayor. “For us to apply anything else would be overturning at least five precedents.”
“If content filtering is no longer as effective as we thought in Ashcroft, and I spot my colleagues that that’s likely true, that would go to whether this law meets strict scrutiny because age verification is more effective,” she added.
Justice Ketanji Brown Jackson also suggested that new technological advancements could cut both ways.
“On the one hand, we have a new set of circumstances that allow for minors to get this material very easily, and it’s ubiquitous,” she said. “But I think petitioner’s argument is that the technology really heightens the risks and burdens on adults who are trying to access this material.”
The porn industry has emphasized that age verification measures could pose risks to adults’ privacy, especially given the high frequency of data breaches in today’s society and the sensitive nature of the types of sexual content people choose to consume.
“It’s not clear to me that just the fact that we have new technology is all is running in favor of allowing this law to stand as is,” Jackson added.
Texas’s law was temporarily blocked by U.S. District Judge Alan Ezra in September 2023, shortly before it was set to go into effect. However, the decision was partially overturned by the U.S. Court of Appeals for the 5th Circuit, allowing the age verification portion of the law to go into effect.
If the Supreme Court wipes the lower ruling and returns the case, the immediate fate of the law remains unclear. The parties previewed a likely battle in the 5th Circuit over whether to block implementation as the court considers the next phase of the case.
“I ask, if anything else, that the language is clear to the 5th Circuit, that it knows it can reinstate the statute. That gets lost in translation sometimes when you get a decision from this court,” said Texas Solicitor General Aaron Nielson.
