Supreme Court must decide if Texas' age verification for porn sites violates free speech

WASHINGTON - A Texas law requiring pornographic websites to verify the age of users before allowing them access went before the Supreme Court on Wednesday.

A group representing the adult entertainment industry is challenging the law, saying that it violates the First Amendment.

Texas argues that minors are too easily able to get around current age-verification requirements.

At the core of Wednesday’s arguments was how the standards of law should be applied to determine if the Texas law violates the First Amendment.

The legal challenge could have an impact on several states which have passed similar legislation.

Supreme Court Arguments

What we know:

The Texas Attorney General’s Office argued Wednesday that the law should be tested under a rational basis.

Rational basis looks to see if a law has a legitimate state interest and if there is a rational connection between the law’s means and goals.

In this case, the state argues that the law is not too burdensome to adults seeking access to pornography, based on a 1968 Supreme Court case, Ginsberg v. New York, in which a store owner argued that age verification was a violation of a minor’s First amendment rights after the store owner was arrested for selling an adult magazine to a 16-year-old boy on two separate occasions.

The Supreme Court upheld the conviction of Ginsberg under New York’s "harmful to minors" law.

However, some justices on the Supreme Court Wednesday were concerned that the Ginsberg case wasn’t the proper argument for the state to make in favor of age verification, since age verification was not at the center of its argument.

The Free Speech Coalition called the Texas law over burdensome to adults seeking to access pornography and creates a "chilling effect" for adults that want to access content.

A chilling effect refers to something that discourages a person from exercising their rights or expressing themselves due to the threat of legal action.

What they're saying:

Derek Shaffer, who represents the Free Speech Coalition, argued that there was no issue with preventing minors from accessing content but that "Texas decided they would empower parents" to monitor and block what their children view online, but "skipped ahead to this chilling step."

Shaffer argued that other options could be used, such as filtering, a service provider level block or filters placed on devices.

Shaffer also argued that the Texas law was less about preventing minors from accessing content and more of an "anti-porn" law.

Shaffer is asking the court to take a strict scrutiny approach to their interpretation of the law.

Shaffer’s argument was challenged by Justice Sonya Sotomayor.

"This law is pretty close to the 20 other laws that have been passed," the justice said.

In rebuttal, Shaffer called the law "the worst of them."

Aaron Lloyd Nielson led arguments for the Texas Attorney General’s Office.

"If strict scrutiny is applied here, then strict scrutiny would have to be applied to keep kids out of strip clubs," Nielson said.

Justice Ketanji Brown Jackson asked how far the state could go in asking for age verification.

"How far can a state go in burdening an adult in showing how old they are?," she said.

Jackson then says that checking identification at the door a strip club would pass a strict scrutiny test.

"Why would saying a kid can’t go into a strip club pose any burden on an adult that wants to?," Jackson said.

Shaffer argued that the state’s interpretation of the Ginsberg case was wrong as the case wasn’t about an age-verification requirement that required all shoppers to show identification.

Justice Elena Kagan seemed to agree.

"It wasn’t the age verification that was the issue in Ginsberg," Kagan said

LIVE UPDATES:

11:20 a.m. - Court is adjourned.

11:18 a.m. - Shaffer argues that the law is actually intended to dissuade adults from accessing porn.

11:16 a.m. - Shaffer on the Texas law compared to similar law - "This is the worst of them."

11:15 a.m. - Shaffer, in rebuttal, argues that Ginsberg wasn't an all involved age verification and didn't require a store with 30% adult material to ban minors and as such is not comparable to Texas Law.

11:08 a.m. - "It wasn't the age verification that was the issue in Ginsberg..." - Kagan

11:02 a.m. - Justice Jackson says checking IDs at the door of a strip club would pass a strict scrutiny test.

11:01 a.m. - "Why would saying a kid can't go into a strip club pose any burden on an adult that wants to?" - Jackson

11:00 a.m. - The justices and Nielson are discussing when age verification becomes too burdensome and when a rational basis review might change to a strict scrutiny review.

10:59 a.m. - "So long as the burden is not greater than Ginsberg then rational basis applies." - Nielson

10:53 a.m. - The justices are now asking Nielson about when age verification could become burdensome.

10:46 a.m. - Here's a quick guide on rational basis from Cornell Law School

10:44 a.m. - "How far can a state go in burdening an adult in showing how old they are?" - Justice Jackson in asking about strict scrutiny versus rational basis.

10:39 a.m. - "If strict scrutiny is applied here, the strict scrutiny would have to be applied to keep kids out of strip clubs." -Nielson

10:38 a.m. - "This case is the digital version of Ginsberg." - Aaron Lloyd Nielson, Texas Attorney General's Office.

10:37 a.m. - Fletcher argues that just because showing an ID to purchase an adult magazine might be embarrassing to someone doesn't make it burdensome.

10:33 a.m. - Justice Kavanaugh asks Fletcher if he has an estimate on the success rate for this case.

"We do not." - Fletcher

10:23 a.m. - The Texas law requires age gating if one-third of a website has material that is obscene to children. Fletcher says the court should consider that the Texas law allows just the obscene portions to be "gated."

10:17 a.m. - The justices are asking if change in technology should play a role in the scrutiny applied. Fletcher is saying the change in technology doesn't changes the standards of precedence from previous cases.

10:09 a.m. - "There's a long tradition of imposing age restriction on this material." - Brian Fletcher, Deputy Solicitor General for the U.S. Dept. of Justice. He's arguing in favor of the law for his "friends from Texas."

10:06 a.m. - "This law is pretty close to the 20 other laws that have been passed." - Sotomayor

10:00 a.m. - Lots of talk about a law being "narrowly tailored." What is that? A law is narrowly tailored when it is written to fulfill its specific goal.

9:56 a.m. - Barrett, in asking about the scrutiny, says that the content isn't banned but perhaps that the age verification is burdensome. That they aren't asking for content to be removed but make it harder to access.

9:53 a.m. - Shaffer argues that because content can be accessed in many ways around the Texas law that the Texas law doesn't do what it was intended.

9:51 a.m. - Shaffer says they support preventing minors from accessing porn as long as the law is narrowly tailored.

9:46 a.m. - Shaffer argues that in the Ginsberg case, it was argued that IDs weren't required to be checked for every person who walked in the store. The Ginsberg case revolved around a store owner who was charged with selling an adult magazine to a minor. 

9:43 a.m. - Alito asks why Texas couldn't use the same verification companies that online gambling sites use. Shaffer argues that since it wasn't mentioned in the Texas law, then they must not believe it would work for them.

9:39 a.m. - Shaffer is asked why a content filter on devices is less burdensome to age verification. He mentioned device filters in the filed brief.

9:38 a.m. - "If [age verification] is built in then it's tailored." - Shaffer

9:37 a.m. - "Why was rational basis appropriate in Ginsberg, but not here?" - Alito

9:33 a.m. - "If content filtering is no longer as effective as we thought in Ashcroft. That would go to whether this law meets strict scrutiny." - Justice Sotomayor

9:30 a.m. - "What's the second most popular porn site?" - Alito

"Your honor, I don't know" - Shaffer

"You don't know? You represent these people." - Alito

9:28 a.m. - Alito asks if they should consider verification the same way for brick and mortar stores and online.

9:24 a.m. - Shaffer is arguing the Texas law is more anti-porn and less about preventing minors from accessing content.

9:22 a.m. - "Filtering doesn't work" - Justice Alito

9:21 a.m. - "Texas decided they would empower parents…and then skipped ahead to this chilling step" - Derek L. Shaffer, Free Speech Coalition attorney

9:20 a.m. - Justice Barrett asks about the difficulty of content filtering on multiple styles of devices.

9:17 a.m. -"Can age verification ever be constitutional?" - Justice Thomas

Texas Age-Verification Law

The backstory:

The Texas Legislature passed House Bill 1181 in June 2023.

The law requires commercial entities that show sexual material to "use reasonable age verification methods […] to verify that an individual attempting to access the material is 18 years of age or older."

The law applies to any website with one-third of content considered obscene for minors.

A federal court in Austin initially kept the state from enforcing the requirement, but the 5th Circuit Court of Appeals lifted the order.

Several pornographic websites cut off access to Texans under the threat of a lawsuit from Texas Attorney General Ken Paxton.

Companies that do not comply with the law could face large fines.

Age verification laws have been passed in Louisiana, Arkansas, Oklahoma, Kansas, Nebraska, Indiana, Kentucky, Tennessee, Mississippi, Alabama, Georgia, South Carolina, North Carolina, Virginia, Florida, Utah, Idaho and Montana.

Free Speech Coalition v. Paxton: Each side's argument

Free Speech Coalition:

The Free Speech Coalition, which is representing the adult entertainment industry, calls the Texas law a "drastic step" that is restricting adults from seeing content that is protected by the First Amendment.

In a brief, it argues that requiring sensitive information to be shared in the age-verification process could deter adults from seeing content they are allowed to access.

The Free Speech Coalition is calling for the state of Texas to enact a more narrow law.

"If Texas had devoted just some of the resources it spent condemning pornography to instead promoting content filtering, it could have equipped parents with a tool far better than age verification for keeping sexual content away from kids. Instead, Texas has thrown up its hands and imposed a blunt age-verification mandate that burdens massive numbers of adults seeking to access constitutionally protected speech," lawyers for the Free Coalition wrote in a brief.

They are calling for the Fifth Circuit Court of Appeals ruling to be reversed.

Texas:

Attorney General Ken Paxton and his team argue that its restrictions are consistent with the Constitution and that websites are not doing enough to protect children from seeing the "unlimited amounts of hardcore pornography" online.

The state argues that as the internet has become more complex, age-verification tactics used by many adult websites have largely remained the same.

Texas is calling for the court to overrule the 2004 decision Ashcroft v. American Civil Liberties Union (II), which determined the Child Online Protection Act, passed in 1998, was unconstitutional.

"Given the infancy of the internet and the rudimentary technologies at issue, no one then credibly could have claimed that age-verification technology reliably and easily distinguished adults from minors. Furthermore, online obscenity has grown much more dangerous for kids as the volume, production quality, and algorithm usage increases—and will grow even more dangerous as AI becomes more entrenched. The world has changed," wrote the state in a brief.

Paxton's team also argues that enforcement of HB 1181 should be allowed to continue with the suit continues, saying "the sky has not fallen" in the year it has been in effect.

They are calling for the Supreme Court to affirm the Fifth Circuit Court of Appeals' ruling.

The Supreme Court typically releases decisions in May or June.

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