The U.S. Supreme Court upheld a Texas law that requires anyone to verify they are over the age of 18 before viewing pornographic websites on Friday, maintaining the state law, which is intended to protect minors from viewing explicit sites.
In a 6-3 ruling, split down ideological lines, justices said Texas’s law only “incidentally” burdened the protected speech of adults and therefore was not subject to strict scrutiny – the most rigorous form of review that judges use to determine if the government is impeding a person’s rights.
Hoping to reduce the number of children viewing pornographic content online, Texas passed a law requiring websites with more than one-third sexual material to verify a user’s age through identification, such as a government ID.
First Amendment advocates had disputed the law, saying it restricted adults’ access to pornography, which they argue is a form of expression. They also raised concerns about privacy protection when people are required to submit a government-issued I.D.
“Because H. B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate adults’ protected speech. Adults have the right to access speech obscene only to minors,” Justice Clarence Thomas wrote for the majority.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented from the majority, arguing that the law was intended for adults, not minors, and therefore impedes speech.
“Speech that is obscene for minors is often not so for adults. For them, the category of obscene—and therefore unprotected speech—is narrower,” Kagan wrote from the dissent. “So adults have a constitutional right to view the very same speech that a State may prohibit for children.
“Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult,” Kagan added.
Justices appeared divided during oral arguments. Everyone agreed laws that protect children are important but some justices also raised concerns with the broadness of Texas’s law.
Lawyers for Texas Attorney General Ken Paxton told the justices that the state had tried to use filtering technology to prevent children from accessing explicit websites, but that it wasn’t sufficient.
Justices appeared sympathetic to that argument. Justice Amy Coney Barrett, a mother to seven children, shared her own firsthand experience trying to protect her children in the age of the internet.
“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,” Barrett said.
That concern is ultimately what’s led at least 18 other states to enact age-verification laws similar to Texas.
Free Speech Coalition, a trade association representing the adult entertainment industry, disputed that. They also raised concerns about a “health” warning label that came up when users attempted to view explicit websites, saying it used scientifically-shaky claims . Such as, pornography can “harm human brain development.”
Justices, especially the conservative majority, seemed less inclined to believe their argument.
“When I try to buy wine at a supermarket, they require me to show an ID,” Justice Samuel Alito said, adding, “I’m flattered by it.”
A lawyer for the Biden administration, who initially inherited the case, agreed that there is a need to protect children but that Texas had not met strict scrutiny. He indicated that Congress or other states could enact different laws with a similar purpose.
The case was Free Speech Coalition v. Paxton.
