SCOTUS Tackles Texas Adult Website Age-Verification Restriction
WASHINGTON — The Supreme Court heard oral arguments Wednesday in a case involving a Texas law requiring adult websites to verify the age of their users.
The Texas law in question, supported by the Ethics & Religious Liberty Commission (ERLC), is one of 20 such laws passed in various states aimed at protecting minors from pornography.
Known as Texas House Bill (H.B.) 1181, the legislation requires websites to verify their users are at least 18 years old if at least one-third of their hosted content is considered “harmful to minors,” such as pornography.
The law also requires websites to include a warning describing the harmful medical and societal effects of pornography consumption. The bill, which passed in June 2023, does not apply to internet service providers, search engines or social media sites.
The case, Free Speech Coalition v. Paxton, will rule on whether or not the House Bill 1181 violates the First Amendment by placing a burden on adults’ access to content the plaintiffs believe is protected by free speech.
A month after the bill was passed, Free Speech Coalition (an adult industry trade organization), a group of pornographic websites and other plaintiffs sued the state of Texas to prevent the law from taking effect. Texas Attorney General Ken Paxton is named as the defendant in the case.
After a federal district court granted the group’s preliminary injunction, the Texas Attorney General’s office appealed the ruling and the injunction was vacated by the 5th Circuit Court of Appeals.
The challengers came to the Supreme Court in April 2024 asking it to intervene. The High Court declined to stay the injunction, letting the law take effect, but later announced in October that it would take up the case this month.
The Supreme Court’s ruling will depend on how it determines whether a user’s First Amendment rights have been violated.
The choice is between two methods or tests of interpretation known as the “rational basis” review or the “strict scrutiny” test.
The rational basis method, which was used by the lower court in its decision, looks at whether or not the law is rationally related to a legitimate government interest.
The challengers argue that the strict scrutiny method should be applied instead, which would mean it is up to the government to demonstrate that age verification is the least restrictive way to protect minors from harmful content. Strict scrutiny is the most demanding tier of judicial review.
Derek Shaffer, a lawyer for the challengers, asked the High Court to reinstate the preliminary injunction blocking the law, and argued that using the strict scrutiny method of interpretation does not impede the Texas government’s vested interest in protecting minors from pornography. He referred to several previous High Court cases in which the justices chose to use the strict scrutiny approach.
“To abandon strict scrutiny here, your honors, could open the door to an emerging wave of regulations that imperil free speech online,” Shaffer said.
“At the same time, content filtering today affords at least one alternative that is both less restrictive and more efficacious.”
The justices seemed doubtful of Shaffer’s assertation that content filtering is a sufficient substitute for age verification, and several asked why his clients do not believe age verification is necessary to achieve the state government’s protection interests.
Justices pointed out that age verification is standard to view explicit or pornographic content in physical locations such as strip clubs, books stores, movie theaters and the like. Or in other instances such as purchasing a gun, gambling or registering to vote.
Shaffer argued that showing a physical ID is different than imputing personal identification online, which could potentially be hacked or stolen. His clients believe this creates a discouragement or “chilling” effect on consenting adults who have a First Amendment right to view the content on such websites.
Shaffer argued that the Texas government did not adequately consider the option of quality content filtering, while the justices pointed out that the issue is whether content filtering works well enough to achieve the government’s protection interests.
Aaron Nielson, solicitor general of Texas, said a previous Supreme Court case that used rational basis review to block children from accessing pornographic content in physical locations can serve as a guide in a world where such content is now ubiquitously available online.
He argued content filtering is not a sufficient approach to block minors from pornographic content, and there are age verification methods that are non-invasive and can prevent the kind of data breaches that Shaffer described. This prevents any burden on consenting adults from accessing content on these websites, and does not violate their First Amendment rights.
“Age verification today, however, is simple, safe and common, including non-identifying means. Petitioners’ view of Texas’ law is contrary to Texas’ view of Texas’ law and the 5th Circuit’s view of Texas’ law,” Nielson said.
“Regardless, if strict scrutiny applies here, Texas would have to satisfy strict scrutiny to keep kids out of strip clubs. This Court’s cases do not require that. Neither do history, tradition or common sense. In all events, even if heightened scrutiny applies, Texas easily satisfies it, especially facially. We’ve tried content filtering for decades, and the problem has only gotten worse.”
ERLC President Brent Leatherwood said the justices seemed extremely skeptical of the challengers’ arguments against the Texas law.
“When Justice Kagan is critical of the gross material you are trying to defend, you know it’s a bad moment for your cause,” Leatherwood said. “That’s the kind of day it was for the porn industry before the U.S. Supreme Court.
“The porn industry’s attorney seemed to envision a world where hardcore websites are somehow beyond the government’s compelling interest to protect children from harm. A majority of justices were having none of it.
“Meanwhile, Texas proved its law easily passes constitutional muster. Asking adults who want to view this indecent and destructive material to verify their age is not only an appropriate request in a digital age, it’s the bare minimum we should expect in a nation that cares about children. The court should uphold this law, and lawmakers should be developing further restrictions on this harmful material to keep it away from our children and our families.”
The ERLC filed an amicus brief in the case last November in conjunction with the Southern Baptists of Texas Convention (SBTC) and the Baptist General Convention of Texas (BGCT).
The ERLC’s brief appealed to the 2001 SBC resolution “On The Plague Of Internet Pornography” and the Baptist Faith and Message 2000 to illustrate Southern Baptists’ stance on the dangers of pornography, especially for minors.
“As originally understood, the First Amendment existed primarily to protect political speech and speech on matters of public concern,” the brief states.
“The Constitution has long given State policymaking a wide berth in this regard. … Given this historical context, rational-basis review is the proper standard here.”
Additionally, nearly 60 lawmakers from 15 of the states where laws are in effect jointly filed an amici brief in support of the Texas law – and by extension their own.
Violators of Texas’ law face penalties of up to $10,000 per day or $250,000 if a violation leads to a minor accessing sexual content.
Ohio, Indiana and 22 other states also filed a brief in the case, where they noted that pornography is not constitutionally protected because it is considered obscene to minors and adults under previously established Supreme Court standards.
Louisiana, a signer of both briefs, was the first state to successfully implement an age-verification law for adult websites.
The law, which went into effect at the beginning of 2023, was written by Louisiana Republican representative Laura Schlegel, who is also a licensed professional counselor and certified sex addiction therapist.
“Protecting minors from obscene content isn’t just a compelling interest legally,” Schlegel said, “It is a compelling, bipartisan issue at every kitchen table in this country.”
A decision in the case in expected in June.
This article has been republished with permission from Baptist Press.
Timothy Cockes is a writer based in Nashville.