WASHINGTON :The U.S. Supreme Court is expected to rule on Friday in 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 Texas measure is one of 24 similar ones enacted around the United States, primarily in Republican-governed states, with some set to take effect in the months ahead, according to the Free Speech Coalition, which challenged the law.
The law requires websites whose content is more than a third “sexual material harmful to minors” to have all users submit personally identifying information verifying they are at least age 18 to gain access.
The case tested 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.
Supreme Court precedents have protected access by adults to non-obscene sexual content on First Amendment grounds, 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, noting how the digital landscape has changed dramatically in the two decades since.
The coalition, a trade association of adult content performers, producers and distributors, as well as companies that run pornographic websites including Pornhub.com, xnxx.com, xvideos.com and Brazzers.com, argued 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 blocked access entirely in states with age-verification laws.
Steps such as content-filtering software or on-device age verification would better protect minors while respecting the rights of adults, according to the challengers.
During Jan. 15 arguments in the case, the justices voiced worries about the pervasiveness of pornography online and the ease with which minors are able to access it. Conservative Justice Amy Coney Barrett, the mother of school-age children, noted that minors can get online porn through cellphones, tablets, gaming systems and computers, and noted that there has been an “explosion of addiction to online porn.”
But some of the justices also expressed concern over the burdens imposed on adults to view constitutionally protected material, debating whether the New Orleans-based 5th U.S. Circuit Court of Appeals should have applied a stricter form of judicial review to the Texas law than the one it actually used that gave deference to legislators.
U.S. District Judge David Alan Ezra issued a preliminary injunction in 2023, blocking the law.
The 5th Circuit 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 another provision requiring websites to display “health warnings” about viewing pornography.
The Supreme Court last year declined to halt enforcement of the law while the case proceeded.
