Texas anti-porn law passes muster at Supreme Court 

WASHINGTON (CN) — States looking to crack down on easily accessible obscene material on the internet got a boost from the Supreme Court on Friday as the justices upheld Texas’ age verification checks for pornography.

In a 6-3 opinion, the high court majority ruled that age-verification laws like Texas’ fall within states’ authority to shield children from sexually explicit content.

They found that Texas’ law does not directly regulate adults’ protected speech, simply because it requires proof of age to access content that is obscene to minors.

“Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment,” Justice Clarence Thomas wrote.

States have long used age-verification requirements to reconcile their interest in protecting children from sexual material, which leaves adults’ rights to access such material, Thomas wrote. Texas’ law “simply adapts this traditional approach to the digital age,” the justice added.

“Requiring proof of age is an ordinary and appropriate means of enforcing an age-based limit on obscenity to minors. Age verification is common when laws draw age-based lines, e.g., obtaining alcohol, a firearm, or a driver’s license. Obscenity is no exception,” Thomas wrote.

“Most states require age verification for in-person purchases of sexual material, and petitioners concede that in-person requirements of this kind are ‘traditional’ and ‘almost surely’ constitutional,” the George H. W. Bush appointee added.

Under the First Amendment, states hold the power to prevent minors from accessing speech that is obscene from their perspective, Thomas wrote. That power includes requiring proof of age before an individual can access such speech, he added.

However, three of the justices expressed concerns that this interpretation grants states the authority to restrict their access without fear of colliding with the Constitution.

In a dissenting opinion, Justice Elena Kagan said the majority’s opinion conflicts with the court’s precedent that has held such laws restrict adults’ access to speech.

Kagan was joined by fellow Barack Obama appointee Justice Sonia Sotomayor and Ketanji Brown Jackson, a Joe Biden appointee.

They said the law imposes a “chilling” effect on adults, who would be deterred from accessing websites because of the need to identify themselves.

“It is not, contra the majority, like having to flash ID to enter a club,” Kagan wrote.

“It is turning over information about yourself and your viewing habits — respecting speech many find repulsive — to a website operator, and then to … who knows? The operator might sell the information; the operator might be hacked or subpoenaed,” she added.

In 2023, Texas enacted House Bill 1181, forcing adult-oriented websites to verify users’ age and display a health warning condemning their content as harmful. The law applies to commercial websites with over one-third of content containing sexual material, aiming to limit readily available hardcore porn that the Lone Star State claims is causing a public health crisis for kids.

The age verification checks require adults to provide digital identification. Pornhub and OnlyFans already use age-verification software from third-party providers to verify the age of content providers.

One such provider, Yoti, said it has completed over 700 million age checks worldwide using AI-driven facial technology. Similar to a bartender, Yoti says its technology includes facial age estimation. Using the camera on their device, users take a photo of their face that is analyzed by an algorithm.

Friday’s ruling was applauded by the National Center on Sexual Exploitation, who filed an amicus brief in support of the law.

“All of the world’s most abusive, violent and racist pornographic content is easily accessible to children online. That’s why today’s decision by the Supreme Court is so critical,” Senior Vice President and Director of the Law Center at the National Center on Sexual Exploitation Dani Pinter said in a statement.

“Now children in Texas will have a measure of protection from accessing pornography websites that are rampant with content that includes sexual assault, rape, child sexual abuse, image-based sexual abuse, along with other violent and racist themes,” Printer added.

Over two dozen states have similar laws. While they claim an interest in blocking minors’ access to obscene material, free speech advocates said the law burdens adults by forcing them to incur severe privacy and security risks before accessing constitutionally protected speech.

Since the law took effect, Pornhub has suspended its services in Texas. The website faces a $1.6 million lawsuit for infractions, each carrying a $250,000 fine.

Free Speech Coalition, an adult entertainment trade association, says the law is overly burdensome for adults, chilling their right to free speech. The group brought a First Amendment challenge to the law, arguing that it should be evaluated under strict scrutiny — the most stringent form of review.

A lower court preliminarily blocked the law from taking effect, but the Fifth Circuit lifted the order as to the age verification requirement. After initially refusing to take emergency action, the Supreme Court took up the case to review this term.

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