By Andrew Chung
WASHINGTON (Reuters) – The U.S. Supreme Court agreed on Tuesday to consider whether a Texas law that requires pornographic websites to verify the age of individual users in an effort to restrict access to minors violates constitutional free speech protections.
The justices took up an appeal by a trade group representing adult entertainment performers and companies of a lower court’s decision upholding the Republican-led state’s age-verification measure, finding that it likely did not violate the U.S. Constitution’s First Amendment safeguard against government infringement of speech.
The Supreme Court is due to hear the case in its next term, which begins in October.
The case tests the limits of state powers to protect children from explicit materials deemed harmful to minors with measures that burden the access of adults to constitutionally protected expression, in this instance online pornography.
Texas has defended the legality of requiring websites to verify age before delivering pornography, just as it may require the same of bookstores or newsstands selling pornographic publications.
The 2023 law requires any websites whose content is more than a third “sexual material harmful to minors” to require all users, including adults, to submit personally identifying information verifying that they are at least 18 years old to gain access. Several other states have enacted similar laws.
The challengers, represented by the American Civil Liberties Union and others, include the Free Speech Coalition, a trade association of adult content performers, producers and distributors, as well as companies that run several pornographic websites including Pornhub.com and xnxx.com.
The challengers have said that the law poses security and privacy concerns by exposing users to possible identity theft, tracking and extortion. They also said that its effectiveness is undermined given that it would not restrict social media or search engines, where pornography is rampant. In any event, the challengers added, content-filtering software works better to protect minors than laws like this.
The plaintiffs contend that the case is straightforward given the Supreme Court’s own precedents that treat non-obscene sexual content as constitutionally protected. These precedents allow governments to limit access by minors to sexual material but, under the First Amendment, they may not burden access by adults to such content.
In the smartphone era when children can easily access “virtually unlimited” hardcore pornography, Texas said in a filing, the law “simply requires the pornography industry that (makes) billions of dollars from peddling smut to take commercially reasonable steps to ensure that those who access the material are adults.”
Senior U.S. District Judge David Alan Ezra issued a preliminary injunction in 2023, blocking the law. Ezra noted that “constitutionally protected speech will be chilled” and could sweep in non-porn websites hosting R-rated movies or sex education materials for high school students.
The New Orleans-based 5th U.S. Circuit Court of Appeals in March ruled that the plaintiffs were unlikely to succeed in their First Amendment challenge to the age verification requirement, lifting Ezra’s injunction on that provision.
The 5th Circuit upheld the judge’s injunction against a separate provision of the law requiring websites to display “health warnings” about the effects of viewing pornography.
The Supreme Court in April refused a request by the challengers to halt enforcement of the law while litigation in the dispute proceeds.
