Washington — The Supreme Court on Friday upheld a Texas law that requires pornography websites to verify their visitors’ age, finding that the lower court applied the appropriate level of judicial review when evaluating the constitutionality of the age-verification laws.
The high court divided 6-3 along ideological lines, with Justice Clarence Thomas authoring the decision for the majority. The Supreme Court said that the law survives a more heightened form of judicial scrutiny.
“We granted certiorari to decide whether these burdens likely render [Texas law] H. B. 1181 unconstitutional under the Free Speech Clause of the First Amendment. We hold that they do not,” Thomas wrote. “The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” he continued, saying Texas’ law “is a constitutionally permissible exercise of that authority.”
“The statute does not ban adults from accessing this material; it simply requires them to verify their age before accessing it on a covered website,” Thomas noted.
Justice Elena Kagan wrote in the dissenting opinion that while “everyone agrees that shielding children from exposure to the sexually explicit speech H. B. 1181 targets is a compelling state interest,” the Texas law should be subject to the most stringent standard of judicial review, strict scrutiny, because it impedes adults’ ability to view constitutionally protected speech based on its content.
“That is what foundational First Amendment principles demand,” Kagan concluded.
While the law at issue in the case was passed in Texas, 18 other states have approved similar measures that require pornography websites to ensure that visitors are at least 18 years old. Challengers to the Texas law — a group of companies that operate covered websites and a trade group called the Free Speech Coalition — have argued that it violates the First Amendment by burdening adults’ access to protected speech.
Under the Texas law, enacted in 2023, entities must comply if more than one-third of their web content is “sexual material harmful to minors,” which is considered to be content that is prurient, offensive and without value to minors. Companies subject to its requirements have to verify users’ ages through digital identification or a government-issued ID.
Violators face civil penalties of up to $10,000 per day or fines of up to $250,000 if a violation leads to a minor accessing sexual material. Internet service providers, search engines and social media companies are effectively exempt from the law.
In response to the challenge to the law brought by the Free Speech Coalition and website operators, a federal district court judge agreed to block enforcement of the age-verification requirement. But the U.S. Court of Appeals for the 5th Circuit froze that decision, which allowed the law to take effect. The Supreme Court last year allowed Texas to continue enforcing the age-verification measure while it weighed the case, known as Free Speech Coalition v. Paxton.
The key question before the high court was whether the 5th Circuit applied the correct standard of review when it evaluated the age-verification law. The appeals court applied the most deferential level of review, rational basis, and found that the requirement satisfied it. But the plaintiffs in the case and the Biden administration said the appeals court was wrong to apply that standard and should have instead analyzed it under the most demanding level, strict scrutiny, because the law impedes adults’ access to speech protected by the Constitution.
Rational-basis review requires laws to serve a legitimate governmental purpose and be reasonably related to that purpose. Under strict scrutiny, however, the government bears the burden of showing that a law is narrowly tailored to serve a “compelling government interest.”
