Washington – The Supreme Court on Wednesday is set to consider efforts by states to require pornography websites to verify the age of their visitors, amid a surge of such laws that supporters say aim to keep children from using the Internet. To protect against accessing sexual material.
The requirement at the center of the case was enacted by Texas in 2023 as part of a wave of similar measures that have been passed in 18 other states. Under Texas law, a website must use “reasonable age verification methods” to confirm that visitors are at least 18 years old.
If more than one-third of the entities' web content is “sexual content harmful to minors”, the entities must comply with the law, which is considered content that is lascivious, offensive, and worthless to minors. Covered companies must verify the age of users through digital identity or a government-issued ID.
Violators of the age-verification requirement face civil penalties of up to $10,000 per day, or up to $250,000 if the violation results in a minor accessing sexual material. Internet service providers, search engines and social media companies are effectively exempted from the law.
Before Texas's age-verification law took effect, a group of companies operating pornography websites and a trade group representing the adult entertainment industry challenged it in federal district court, arguing that it violated the First Amendment. Violates because it burdens adults' access to protected speech. ,
A federal judge blocked enforcement of the measure, first finding that the age-verification provisions were subject to strict scrutiny, the most demanding level of judicial review. The court then held that the requirements failed to meet that standard because they were short and overinclusive and vague.
A federal appeals court then blocked the district court's order, allowing the age-verification law to go into effect. The U.S. Court of Appeals for the 5th Circuit said that the lower court was wrong to apply strict scrutiny, and instead it should have evaluated the law under a less stringent standard. Using that standard, the 5th Circuit held that the law survives because the evidence shows “the kind of harm that access to pornography causes to children.”
A trade group called the Free Speech Coalition and pornography websites asked the Supreme Court in April to temporarily halt enforcement of the law, which it declined to do. Months later, the High Court agreed to take Legal battle.
The question in the case is more procedural: whether the lower court applied the wrong standard of review when assessing the constitutionality of the Texas law. That court, the 5th Circuit, examined the measure under what's called rational-basis review, the lowest level of judicial scrutiny that is deferential to the government, and found that it was satisfied with that standard.
But challengers to the law and the Biden administration argue that the appeals court should have applied the most demanding level, strict scrutiny, because it impedes adults' access to constitutionally protected speech.
Rational-basis review requires laws to serve a legitimate government purpose and be reasonably related to that purpose. However, under scrutiny, the government bears the burden of showing that a law is designed to serve a “compelling government interest.”
The Supreme Court could uphold the lower court's decision, which would uphold the age-verification law, or rule that the 5th Circuit applied the wrong test and order another look at the law under the appropriate standard of review. Could.
“This case matters because it's about how the government can deal with speech it doesn't like, and pornography is often the canary in the coal mine for free speech. And it also matters because This is about the future of free speech online,” Vera Edelman, an attorney with the ACLU, said in a press call.
Opponents of the Texas law argue that if it is allowed to stand, it could have a chilling effect on adult visitors to regulated websites. Additionally, it could open users up to privacy and security risks, such as data breaches, that do not arise if IDs are checked in person, they argued in court filings.
Already, Pornhub, one of the largest adult content websites, Access blocked in Texas last year and did the same in Florida Its own age-verification law took effect earlier this year.
“When an adult site tries to do age verification, the majority of people visiting that site refuse to do a face scan, biometrics, ID upload, whatever. It has a huge shocking effect on people. Don't want to do that,” he said. Mike Stabile, director of public policy for the Free Speech Coalition.
The trade group argued court papers Texas could take a less-restrictive approach to protecting children from sexual material: content-filtering software, which the Supreme Court endorsed in a 2004 decision blocking the federal Children Online Protection Act. Additionally, he said that the law regulates speech more than necessary, as it applies to an entire website if more than a third of its content is considered sexual material harmful to minors, and this includes romance novels and R-rated content. Contains content like movies.
For example, he said, “A website that contains 65% mainstream political speech and 35% sexually suggestive content would be 100% subject to the restrictions of HB 1181. This is paradigmatic hyperinclusivity.”
But the law also doesn't cover that because search engines and social media sites don't have to follow age-verification requirements, even though minors can access content there, which Texas is trying to protect them from, the Free Speech Coalition said. argued.
In a friend-of-the-court brief, the Biden administration argued that the law is subject to the most demanding form of judicial scrutiny. Solicitor General Elizabeth Preloger said the Supreme Court should vacate the 5th Circuit's decision and send the case back to the appeals court for closer scrutiny.
But Preloger said that in doing so, the Supreme Court “must make clear that the First Amendment does not prevent Congress and states from adopting reasonably designed measures to prevent children from accessing harmful sexual material on the Internet.” “
The administration did not take a position on whether the Texas law meets strict scrutiny and therefore withstands a constitutional challenge. Principal Deputy Solicitor General Brian Fletcher is set to participate in the arguments on Wednesday.
Meanwhile, Texas Attorney General Aaron Nielsen said in a statement filed State officials were responding to a public health crisis caused by children's easy access to “hardcore pornography” through smartphones and other devices.
Age-verification requirements, he said, “protect children from what is indecent [adults’] According to the standards, lobbyists are required to check whether their audiences are children – enabling adults to access pornography by engaging them in a process that they potentially only have to complete once and that prevents them from viewing pornography, Equally applies to buying alcohol or renting a car.
Backing Texas in the dispute is a group of 24 states whose officials are urging the Supreme Court to uphold the lower court's decision.
states wrote in one Brief description of friend of the court Age-verification laws are a routine exercise of the right of children to protect themselves from exposure to sexual violence and explicit images. He noted that most online pornography is not constitutionally protected, as it is considered indecent for minors and adults under the Supreme Court's standard established in 1973.
“The Texas age-verification law impinges on the state's deeply vital interest in protecting minors from the psychological, physical, and social harm caused by fanatical Internet pornography petitioners – an interest that everyone agrees is compelling, and this Court There should be hesitation in ending it,” the states, led by the attorneys general of Ohio and Indiana, wrote.
The Supreme Court's decision is expected by the end of June 2025.