By Andrew Chung and John Kruzel
WASHINGTON (Reuters) – The U.S. Supreme Court is set on Wednesday to hear a challenge on free speech grounds to a Texas law that requires pornographic websites to verify the age of users in a case testing the legality of state efforts to keep minors from viewing such material online.
A trade group representing adult entertainment performers and companies appealed a lower court’s decision allowing the Republican-led state’s age-verification mandate, finding that it likely did not violate the U.S. Constitution’s First Amendment safeguard against government abridgment of speech.
The 2023 measure is one of 19 similar ones enacted around the United States, primarily in Republican-governed states, as policymakers worry about how the proliferation of hardcore pornographic material online affects the wellbeing of minors.
The Texas law requires any website whose content is more than a third “sexual material harmful to minors” to require all users to submit personally identifying information verifying that they are at least 18 years old to gain access.
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 Supreme Court last year denied a request by the challengers to halt enforcement of the law while litigation in the dispute proceeded.
The case tests the limits of state powers to protect minors from explicit materials deemed by policymakers to be harmful to them with measures that burden the access of adults to constitutionally protected expression.
The challengers said in court filings that online age verification unlawfully stifles the free speech rights of adults and exposes them to increasing risks of identity theft, extortion and data breaches.
Some sites like Pornhub have responded by blocking access entirely in states with age-verification laws.
The challengers said content-filtering software and on-device age verification would work better to protect minors than laws like the one at issue. They noted that Supreme Court precedents have long protected access by adults to non-obscene sexual content, including a 2004 ruling that blocked a federal law similar to the Texas measure.
If the 2004 precedent prevents Texas from enforcing its law, then it should be overruled, the state argued.
Texas told the Supreme Court that through smartphones and other devices, children have easy access to an “avalanche of misogynistic and often violent smut” including “graphic depictions of rape, strangulation, bestiality and necrophilia.” Much of the content on pornographic websites “is obscene even for adults.”
U.S. District Judge David Alan Ezra issued a preliminary injunction in 2023, blocking the law.
The New Orleans-based 5th U.S. Circuit Court of Appeals ruled in 2024 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 Ezra’s injunction against a separate provision of the law requiring websites to display “health warnings” about the effects of viewing pornography.
President Joe Biden’s administration urged the Supreme Court to throw out the 5th Circuit decision and order it to reconsider the case under a more stringent form of judicial review.
