Porn-Site Age Verification Law Tests Supreme Court Precedent

A challenge to a Texas law that aims to keep kids from viewing pornography online asks the US Supreme Court to choose between decisions it issued before and after the internet was invented.

The case scheduled to be argued Wednesday could have major implications for future disputes over free speech, internet privacy, and censorship depending on which approach the justices say prevails. That’s because they require courts to use different standards of review when determining whether laws like the age verification requirement for porn sites in Texas violate the First Amendment.

Adult film producers and a trade group for the adult industry say HB 1181 infringes on the First Amendment rights of adults to access constitutionally protected forms of expression. They argue the law forces users to give up personal identifiable information and is overly broad in applying to any website—except search engines and social-media sites—where a third or more of the content is “harmful to minors.”

“The key concern is adults’ freedom to choose which content they consume and to do so without fear that their personal identity might fall into the wrong hands,” said Thomas Berry, of the libertarian Cato Institute, which filed a brief in the case supporting the law’s challengers.

Binding Precedent?

Texas argues it’s targeting only the websites most harmful to minors and it’s regulating obscene material that even adults don’t have a First Amendment right to access.

In tossing out a trial court’s preliminary injunction that had blocked the law, the US Court of Appeals for the Fifth Circuit said Texas only needs to have a rational basis for age-gating and its interest in protecting kids from obscene material was enough.

The appeals court relied on the standard the Supreme Court used in Ginsberg v. New York, a 1968 case in which the court upheld a state law prohibiting retailers from selling so-called “girlie” magazines with nude photos to minors.

Free Speech Coalition and the adult content producers argue the Fifth Circuit should’ve followed the court’s more recent 2002 and 2004 decisions in Ashcroft v. ACLU.

In Ashcroft, the court struck down a federal age verification law similar to HB 1181 after finding it likely was unconstitutional under the strictest standard of review, which requires the government to have a compelling purpose for restricting speech and to achieve it in the least burdensome way.

The question for the justices now is whether Ashcroft applies to age verification laws like the one in Texas and 18 other states, according to the Free Speech Coalition’s count.

The Fifth Circuit said the Supreme Court only applied strict scrutiny in Ashcroft because the government didn’t argue for a less stringent standard. Since it wasn’t a question the court decided, it didn’t have to be followed, the appeals court reasoned.

“I’ve never seen a lower court opinion have a ruling like that where the Supreme Court is explicit about what standard of scrutiny it’s applying and the lower court says, that isn’t binding precedent because we’re going to interpret that as simply bad lawyering on the government’s part,” Berry said.

That’s why Berry thinks the Supreme Court could overturn the Texas law in a short, unanimous ruling that says, “we meant what we said in Ashcroft and this is virtually the same type of law, so it’s unconstitutional for the same reason.”

Other legal scholars don’t read much into the justices’ decision to hear the case.

Adam Candeub, a senior fellow at the Center for Renewing America, said the justices refused to step in and temporarily block the law from taking effect. If the Fifth Circuit’s decision was that egregious, “the court would have upheld the stay, but they didn’t,” he said.

Online Identity

Texas claims its law survives any level of review, but the less stringent standard should apply.

The Free Speech Coalition argues content-filtering technology is an alternative that would achieve the same purpose.

If the Supreme Court sides with Texas, First Amendment rights advocates say it could set a precedent undermining the right to anonymous speech and association in an increasingly digital world.

It could stifle political dissent and limit whistleblowing, “which are areas where the right to anonymity is critical for safety and the freedom of expression,” said Sarah Zeiger, a Vanderbilt Law School student attorney who co-authored a brief supporting the Free Speech Coalition and adult content producers.

If the court says Ashcroft does apply, Candeub said the justices should recognize the subsequent technological changes and vote to uphold the Texas law.

There’s plenty of technology that allows a person to demonstrate their age without revealing their identity, he said.

Candeub, who filed a brief in support of Texas, said there’s an assumption that people are anonymous on the web and stop being anonymous when they give their ID.

“You’re never anonymous on the web,” he said. “You’re always tracked and your identity can be easily discovered at any time.”

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