The Supreme Court on Tuesday said it will consider a challenge to a Texas law that requires pornographic websites to verify the ages of their visitors.
The dispute centers around Texas House Bill 1181, which was enacted in June 2023 and aims to prevent minors from accessing sexual content online. The law requires any website that publishes a certain amount of “sexual material harmful to minors” to verify that every user attempting to access the content is at least 18 years old.
Websites covered by the law must also display health warnings about the alleged psychological risks of pornography. Search engines and social media platforms are effectively exempt from the law’s requirements. Violators may face up to $10,000 per day in civil penalties, and if a minor accesses sexual material, the Texas attorney general can seek an additional $250,000 per violation.
Similar age-verification laws are in effect in seven other states — Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah and Virginia — and are scheduled to take effect in several more in the coming months.
The Free Speech Coalition, a trade association for the adult entertainment industry, and a group of companies that operate pornography websites challenged the Texas law before it was set to take effect on Sept. 1, 2023, arguing it infringes on their First Amendment rights. A federal district court agreed to block the law’s enforcement one day before it was set to go into force.
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Texas appealed to the U.S. Court of Appeals for the 5th Circuit, which allowed the state to enforce the law while it reviewed the district court’s ruling. In March, a three-judge panel of judges upheld the injunction as to the health warnings and disclosure requirements, finding it unconstitutionally compels the adult websites’ speech.
But the panel divided 2-1 to find that the challengers were unlikely to succeed on their challenge to the age-verification portions. The majority disagreed with the district court about the level of scrutiny it applied, and said the proper standard was rational-basis review, the minimum level of scrutiny for determining the constitutionality of a law.
Applying that level of judicial scrutiny, the two judges found that the age-verification requirement is “rationally related to the government’s legitimate interest in preventing minors’ access to pornography” and therefore doesn’t violate the First Amendment.
Judge Patrick Higginbotham dissented as to the age-verification requirements, writing that the provision “cannot be reasonably read to reach only obscene speech in the hands of minors.”
“H.B. 1181 limits access to materials that may be denied to minors but remain constitutionally protected speech for adults,” he wrote. “It follows that the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.”
See here for the previous update and here for an overview of the problems with Texas’ law; The 19th also has a good discussion of the issue. On the plus side, SCOTUS did hand down a good ruling on the stupid social media censorship law, one that recognized the free speech implications and went in the right direction from there. That was one of several bench-slappings that SCOTUS gave to the Fifth Circuit this past term, which suggests they have some limits, on some issues, some of the time. On the other hand, well, there was everything else SCOTUS did. Six of them are handmaidens to plutocrats and Christian nationalists, and they can and do plenty of damage. We’ll just have to see what they do with this one. The Associated Press and the Trib have more.