Supreme Court Struggles With Porn Site Age Verification Case (1)

Supreme Court justices seemed to agree that states should be able to protect kids from viewing pornography online, but expressed concern that Texas’ age verification law infringes on the free speech rights of adults to view such content.

If states can regulate obscene material in brick-and-mortar stores under the court’s current precedent, Justice Elena Kagan suggested during arguments on Wednesday that there should be a way to translate that to the world of the Internet.

Age verification for “printed smut” requires the same kind of documentary proof that the Texas law does, she said.

Though Chief Justice John Roberts said the availability of pornography has “exploded” with technology since the court last grappled with restrictions on obscene material and may require the justices to rethink how it applies First Amendment principles.

“There are cases where the technological developments caused the court to reconsider the precedents that were developed under, you know, not quite the horse-and-buggy days but prior to very significant changes,” he said. “Why isn’t that a pertinent factor to consider here?”

It wasn’t clear from the proceedings, however, where the court landed on the question that was before it: did the US Court of Appeals for the Fifth Circuit apply the correct standard in assessing whether the Texas law is constitutional under the First Amendment?

HB 1181 requires websites to verify the age of users if a third or more of their content is harmful to minors.

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In tossing a preliminary injunction and allowing the law to take effect, the Fifth Circuit said Texas only needed to have a rational basis for restricting speech and its interest in protecting kids from obscene material was enough.

Adult content producers and the industry trade group Free Speech Coalition argue the court should’ve assessed the law under a strict standard that requires Texas to have a compelling interest that it can achieve in the least restrictive way.

“Content filtering today affords at least one alternative that is both less restrictive and more efficacious,” said their attorney, Derek Shaffer, of Quinn Emanuel Urquhart & Sullivan LLP.

Justice Amy Coney Barrett seemed to doubt that.

“I mean, kids can get online porn through gaming systems, tablets, phones, computers,” she said. “Content filtering for all those different devices, I can say from personal experience, is difficult to keep up with and I think that the explosion of addiction to online porn has shown that content filtering isn’t working.”

Barrett is a parent of school-age children.

Texas argues the Fifth Circuit correctly relied on the court’s 1968 decision in Ginsberg v. New York. The court in that case upheld a state law prohibiting retailers from selling so-called “girly” magazines with nude photos to minors under a rational-basis standard.

“This case is a digital version of Ginsberg,” which forced stores to make a reasonable, bona fide attempt to ascertain the true age of customers, Texas Solicitor General Aaron Nielson said.

But Justice Clarence Thomas noted Texas is regulating heavily trafficked websites.

“How does that translate in a world in which you’re not talking about one-on-one transactions, but billions of transactions?” he asked.

Several of the justices questioned what would happen to the law if the court were to vacate the Fifth Circuit decision.

“Would the preliminary injunction of the district court spring back into effect, so this law that’s already taken effect will now no longer be enforceable?” Justice Neil Gorsuch asked.

Nielson said Texas would go back and ask the Fifth Circuit for clarification, since the appeals court had stayed the injunction.

Companies that fail to properly verify the age of their website users face fines up to $10,000 per day and up to $250,000 if a child is exposed to pornographic content as a result, Texas Attorney General Ken Paxton’s office says.

Websites aren’t allowed to retain any identifying information that they collect from users in verifying their ages under HB 1181. Doing so could cost companies $10,000 daily in fines.

The case is Free Speech Coalition, Inc. v. Paxton, U.S., No. 23-1122, oral argument 1/15/25.