There’s a lot on the line here.
The U.S. Supreme Court on Wednesday appeared conflicted over whether a Texas law regulating adult entertainment websites infringes upon First Amendment free speech rights of adults seeking to access online pornography.
At issue is a 2023 Texas law requiring companies that operate websites where more than one-third of the material is harmful to minors to use “reasonable” age verification measures to ensure users are at least 18 years old. More than a dozen other states have passed similar laws, but Texas’ is the first to be looked at by the nation’s highest court. The U.S. Supreme Court’s decision could determine the fate of other states’ laws and set new precedent on how the government can impose age-related content regulations.
More than two hours of arguments on Wednesday concluded with a lawyer for adult entertainment websites contending that the internet is “free” and that it is incumbent upon parents, not websites, to screen out content inappropriate to their kids. Derek Shaffer, the attorney, also pointed out the particular features of Texas’ law compared to that of other states.
“This is the worst of the laws,” Shaffer said. “Texas is telling these targeted speakers that pornography is, among other things, contributing to prostitution. You have a hostile regulator who is saying to adults, ‘You should not be here.’”
[…]
State lawmakers passed House Bill 1101 in 2023 as part of a broader push to prevent children from being exposed to sexual materials. The law quickly drew scrutiny from free speech advocates and adult entertainment websites like Pornhub, who said the law would place undue burden on adults by forcing them to jump through hoops and endanger their privacy to access legal content. Critics also said the law was overly broad and could apply to websites providing information on reproductive rights resources, sexual education and LGBTQ+ literature. The law was initially blocked from going into effect after a federal U.S. District Court Judge found it unconstitutional.
The 5th U.S. Circuit Court of Appeals reversed that decision in November 2023, allowing the law to go into effect. The law carries fines of up to $10,000 per day that a website operates without age-verification requirements and up to an additional $250,000 if a minor accesses sexual material harmful to them. Pornhub has disabled access to Texans since last March, when the 5th Circuit formally vacated the lower court’s ruling.
U.S. Supreme Court justices on Wednesday were asked to consider whether the appeals court applied proper legal reasoning in upholding age-verification. The Free Speech Coalition, a trade group representing adult entertainment websites, argued that the proper standard of review is strict scrutiny, the most stringent standard that is used in cases pertaining to fundamental rights such as freedom of speech. The 5th Circuit relied on rational basis review, a less strict review which considers only whether there’s a legitimate state interest for the law.
Texas’ solicitor general Aaron Nielson argued on behalf of the state and told justices that the law would satisfy any level of scrutiny.
“Age verification today is simple, safe and common,” Nielson said. “Even if heightened scrutiny applies, Texas easily satisfies it.”
The U.S. Supreme Court is expected to issue a decision on the case this summer. They appeared open to the idea of an age-verification requirement, but some justices seemed concerned about the possible First Amendment implications of a broad ruling. In two separate cases, the Supreme Court has previously ruled that laws aimed to prevent the distribution of obscene materials to minors were unconstitutional restrictions of free speech.
See here for the previous update. There’s not a clear consensus of what the court made of the arguments. Here are two headlines I came across on Thursday afternoon:
Justices skeptical of Fifth Circuit ruling that upheld Texas age-verification internet law
Supreme Court appears sympathetic to law requiring porn sites to verify users’ age
Go guess. Slate’s Mark Joseph Stern takes his own shot at it:
In past cases like Ashcroft, the Supreme Court rejected this censorship-first approach, warning against the perils of censoring protected expression in the name of protecting kids. How times have changed. As soon as Derek Shaffer began arguing for the adult film industry on Wednesday, the conservative justices accused him of underestimating the danger and ubiquity of internet porn today. “It’s been 20 years since Ashcroft,” Justice Amy Coney Barrett told Shaffer. “The iPhone was introduced in 2007 and Ashcroft was decided in 2004. I mean, kids can get online porn through gaming systems, tablets, phones, computers.” There has been an “explosion of addiction to online porn.” Clearly, she posited, relying on parents to “filter” explicit content “isn’t working.” Justice Samuel Alito agreed. “Come on, be real,” he lectured Shaffer. “There’s a huge volume of evidence that filtering doesn’t work. We’ve had many years of experience with it.”
So the Ashcroft court’s sanguine assumption that parents could rely on technology to filter out porn has vanished. Gone, too, is that court’s laissez-faire attitude toward sexually explicit speech, replaced by Barrett’s concern about youth “addiction” to porn. “Do you dispute,” Justice Brett Kavanaugh asked Shaffer, “the societal problems that are created both short term and long term from the rampant access to pornography for children?” (“That is a complicated question,” Shaffer offered.) “Technological access to pornography, obviously, has exploded,” Chief Justice John Roberts opined, adding that “the nature of the pornography, I think, has also changed.” Justice Clarence Thomas added that “we’re in an entirely different world” from Ashcroft, which “was a world of dial-up internet.”
All of these justices appear to harbor some regrets about Ashcroft’s unyielding insistence upon the application of strict scrutiny to online porn laws. But what should replace it? Alito sounded eager to embrace the 5th Circuit’s use of rational basis review, while other justices waffled. Barrett floated the idea of “intermediate scrutiny,” which gives the government more leeway to regulate speech without writing a blank check. Roberts and Kavanaugh seemed interested in applying a kind of pseudo-strict scrutiny that would, in practice, dilute protections for internet porn. Justice Elena Kagan fretted about “the spillover danger” of “relax[ing] strict scrutiny in one place,” noting that “all of a sudden strict scrutiny gets relaxed in other places.” Justices Sonia Sotomayor and Ketanji Brown Jackson shared that concern, and it’s a weighty one: If the court slackens First Amendment standards for internet pornography, it will inevitably reduce protections for speech that it holds in higher esteem.
The liberal justices are right to fret about the dire consequences of reducing or eliminating constitutional protections for sexual expression online. If the court takes this step, there’s no reason why states’ battle against explicit material must stop at PornHub. States could target online bookstores that sell sexually explicit e-books, for instance, as well as streaming services that carry explicit TV show and movies. As the dissenting judge on the 5th Circuit explained, there is an endless array of graphic media that adults have a constitutional right to access even though it is plainly inappropriate for children. Could a state punish HBO for airing Game of Thrones without first verifying viewers’ age? Under the 5th Circuit’s view, apparently shared by at least one justice, almost certainly.
The best outcome that is on the table is for SCOTUS to send it back to the Fifth Circuit with instructions to apply strict scrutiny. After that, we’ll see. A press release from the ACLU of Texas is here, and TPM, the Chron, and NBC News have more.