United States: The US Supreme Court will hear a free speech appeal of a Texas law that compels adult websites containing pornography to confirm the age of their users in a case attempting to define the unconstitutionality of state attempts to prevent minors from accessing such material over the internet, as reported by Reuters.
A Statewide Push to Protect Minors
An industry association of adult entertainment performers and businesses challenged a lower court’s decision that upheld the Republican-controlled state’s age check requirement because it did not probably impinge on the First Amendment right in the Constitution against government censoring of speech.
The 2023 measure is one of 19 such measures passed across the United States, mainly in the Republican-majority states, as policymakers are concerned over the impact of hard-core pornographic materials on the Internet on the welfare of children.
In Texas, for any Web site with over one third of its contents deemed sexually explicit material that is detrimental to minors, then all users are blocked from accessing the Web site unless they provide personal identification of them being 18 years and above.
Violent contents and scenes are moved and interchangeably with willing participants that demonstrate and portray consent to the activity portrayed on camera, the challengers, being the American Civil Liberties Union, the Free Speech Coalition, a trade association of adult content performers, producers and distributors and companies behind several adult Websites including the Pornhub.com and xnxx.com among others.
Ken Paxton’s press conference outside the Supreme Court for arguments over Texas’ porn age verification law.
— Kaelan Deese (@KaelanDC) January 15, 2025
He tells me that even a remand back to the 5th Circuit on the lower scrutiny “rational basis” standard would be a win.
Side note: He’ll be here for the inauguration. pic.twitter.com/xj6CrmGrix
Last year, the Supreme Court rejected the challengers’ motion to enjoin enforcement of the law while the issues in the controversy remained before the courts.
The case challenges the ability of states to shield children from the materials deemed by the policymakers as potentially damaging to their young selves using measures that encumber the autonomy rights of adults in constitutional resolutions regarding free expression.
The challengers have stated in their legal papers that the online age verification is pervasively unlawful since it suppresses the First Amendment rights of every adult and subjects them to escalating risks of identity theft, extortion, and data breaches.
As a result, websites such as Pornhub have opted for such measures by closing their access to states that have put in place age verification laws.
Broader Implications
The challengers argued that, though content-filtering software and on-device age verification would probably be effective in protecting minors, it would be unnecessary to enact laws such as the one in question. They pointed out they observed constitutional precedents have over and over again barred reasonable accessibility by adults to any sexually related substance other than obscenity, based on the Ninth Circuit, quoting the Supreme Court ruling ending the 2004 law akin to the Texas measure.
If the 2004 precedent bars the latter from enforcing the law, then it should be likewise, as Texas argued.
Supreme Court will hear Texas anti-pornography law that challengers say violates free-speech rights https://t.co/DzN6mKDONZ
— THV11 (@THV11) January 15, 2025
Judicial Journey: Conflicting Rulings
Texas informed the Supreme Court that children under 18 have direct access to pornography through smartphones and other devices and have free access to ‘an avalanche of misogynistic and often violent smut’ that includes ‘graphic depictions of rape, strangulation, bestiality, and necrophilia.’ About 30 to 40 percent of the content that is available on pornographic websites “is obscene even for adults.”
Industry Response
In 2024, the New Orleans-based 5th U.S. Circuit Court of Appeals said the plaintiffs were likely to prevail in their First Amendment challenge to the age-verification provision, freeing Ezra from his injunction related to that provision.
Is porn protected speech? Supreme Court takes on Texas age-verification law https://t.co/RCEsLd5hH8 pic.twitter.com/91REt01FSu
— LoneStarLive.com (@TXLoneStarLive) January 15, 2025
The 5th Circuit also supported Ezra’s injunction regarding another aspect of the law that compelled websites to post “health warnings” regarding the negative impacts of pornography, as reported by Reuters.
The Biden administration under President Joe Biden has asked the Supreme Court to dismiss the 5th Circuit ruling and compel it to revisit the case under a more rigorous doctrinal standard of review.