Washington — The Supreme Court is set to weigh Wednesday states’ efforts to require pornography websites to verify their visitors’ ages amid a surge of laws that proponents say are aimed at protecting children from accessing sexual content on the internet.
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 visitors are at least 18 years old.
Entities must comply with the law if more than one-third of its web content is “sexual material harmful to minors,” which is considered to be content that is prurient, offensive and without value to minors. Covered companies have to verify users’ ages through digital identification or a government-issued ID.
Violators of the age-verification requirement face civil penalties of up to $10,000 per day, or fines of up to $250,000 if a violation leads to a minor accessing sexual material. Internet service providers, search engines and social media companies are effectively exempt from the law.
Before Texas’ age-verification law took effect, a group of companies that operate pornography websites and a trade group that represents the adult entertainment industry challenged it in federal district court, arguing it violates the First Amendment 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 tier of judicial review. The court then held that the requirements failed to satisfy that standard because it is under- and overinclusive, and unclear.
A federal appeals court then paused the district court’s order, allowing the age-verification law to take effect. The U.S. Court of Appeals for the 5th Circuit said the lower court was wrong to apply strict scrutiny, and instead should have evaluated the law under the least-stringent level. Using that standard, the 5th Circuit said the law survives because of evidence showing “the sort of damage that access to pornography does to children.”
The trade group, called the Free Speech Coalition, and the pornography websites asked the Supreme Court in April to temporarily block enforcement of the law, which it declined to do. Months later, the high court agreed to take up the legal battle.
The question in the case is a more procedural one: whether the lower court applied the wrong standard of review when it assessed the constitutionality of the Texas law. That court, the 5th Circuit, examined the measure under what’s called rational-basis review, the lowest tier of judicial scrutiny that is deferential to the government, and found it satisfied that standard.
But the law’s challengers and the Biden administration argue that the appeals court should’ve 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 governmental purpose and be reasonably related to that purpose. Under scrutiny scrutiny, however, the government bears the burden of showing that a law is narrowly tailored to serve a “compelling government interest.”
The Supreme Court could uphold the lower court’s decision, which would leave the age-verification law intact, or rule that the 5th Circuit applied the wrong test and order it to take another look at the law under the proper standard of review.
“This case matters because it’s about how the government can treat speech it doesn’t like, and pornography is often the canary in the coal mine for free speech. And it also matters because it’s about the future of free speech online,” Vera Eidelman, a lawyer 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’ to privacy and security risks like data breaches, which don’t arise when having an ID checked in-person, they argued in court filings.
Already, Pornhub, one of the largest adult content websites, blocked access in Texas last year and did the same in Florida at the start of this year after its own age-verification law took effect.
“When an adult site tries to do age verification, most people coming to that site refuse to do a face scan, biometrics, ID upload, whatever it is. There’s a huge chilling effect. People don’t want to do it,” said Mike Stabile, director of public policy for the Free Speech Coalition.
The trade group argued in court papers that Texas could have employed a less-restrictive way of protecting children from sexual material: content-filtering software, which the Supreme Court backed in a 2004 decision blocking the federal Child Online Protection Act. Additionally, they said the law regulates more speech than is necessary, since it applies to an entire website if more than one-third of its content is considered sexual material harmful to minors, and sweeps in material like romance novels and R-rated movies.
For example, they said, “a website that contains 65% core political speech and 35% sexually suggestive content would be 100% subject to H.B. 1181’s restrictions. That is paradigmatic overinclusivity.”
But the law is also underinclusive since search engines and social media sites do not have to comply with age-verification requirements, even though minors can access the content there that Texas is trying to shield them from, the Free Speech Coalition argued.
In a friend-of-the-court brief, the Biden administration argued the law is subject to the most demanding form of judicial scrutiny. The Supreme Court, Solicitor General Elizabeth Prelogar said, should toss out the 5th Circuit’s decision and send the case back to the appeals court to apply strict scrutiny.
But Prelogar said in doing so, the Supreme Court “should make clear that the First Amendment does not prohibit Congress and the States from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet.”
The administration did not take a position on whether Texas’ law satisfies strict scrutiny and therefore withstands the constitutional challenge. Brian Fletcher, principal deputy solicitor general, is set to participate in arguments Wednesday.
Meanwhile, Texas Attorney General Aaron Nielson said in a filing that state officials were responding to a public health crisis sparked by kids’ easy access to “hardcore pornography” through smartphones and other devices.
The age-veritification requirements, he said, “protects children from that which is obscene by [adults’] standards, by requiring the purveyors to check whether their viewers are children — leaving adults able to access pornography by engaging in a process that they must complete potentially only once and that applies equally to viewing pornography, buying wine, or renting a car.”
Backing Texas in the dispute is a group of 24 states, officials from which are urging the Supreme Court to uphold the lower court’s decision.
The states wrote in a friend-of-the-court brief that age-verification laws are a routine exercise of their authority to protect children from being exposed to sexual violence and explicit images. They noted that most online pornography is not constitutionally protected, as it is considered obscene to minors and adults under a Supreme Court standard set in 1973.
“Texas’s age-verification law effectuates the state’s deeply important interest in protecting minors from the psychological, physical, and social harms wrought by the hardcore internet pornography petitioners purvey — an interest all agree is compelling, and that this court should hesitate to override,” the states, led by the attorneys general of Ohio and Indiana, wrote.
A decision from the Supreme Court is expected by the end of June 2025.
Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.
