Supreme Court agrees to review Texas age verification law for porn sites

Washington — 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 legal fight

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. 

Senior U.S. District Court Judge David Alan Ezra said the age-verification requirement likely violates the First Amendment, in part because it restricts adults’ access to constitutionally protected speech based on the material’s content. The judge concluded that the law is overbroad and overly restrictive.

By verifying information through government identification, Ezra said the law “will allow the government to peer into the most intimate and personal aspects of people’s lives” and risks forcing people to “divulge specific details of their sexuality to the state government to gain access to certain speech.”

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.”

The 5th Circuit declined to pause its ruling while the Free Speech Coalition and adult websites appealed to the Supreme Court. The challengers also sought emergency relief from the high court, which declined to block the law while it considered whether to take up the coalition’s appeal.

In urging the Supreme Court to intervene, the websites and trade group argued that the 5th Circuit’s ruling “openly defies” its precedent and is at odds with the decisions from other appeals courts that have reviewed laws similar to Texas’.

“This case presents a far-reaching question about government efforts to burden disfavored expression of the kind this court has repeatedly deemed worthy of review — in its leading sexual-content cases and many others,” lawyers for the challengers told the Supreme Court in a filing.

While the restriction seeks to shield minors from sexually explicit online content, they argue the law burdens adults’ access to expression that is protected by the First Amendment. The measure, the Free Speech Coalition and adult websites claim, requires every user, including adults, to submit personal information to access sensitive content over the Internet, exposing them to leaks, hacks or other security risks.

Texas officials, meanwhile, defended the law and said its challengers are attempting to nullify the state’s efforts to protect minors from being exposed to sexually explicit content.

The law, they said in a filing, “simply requires the pornography industry that makes billions of dollars from trafficking in obscenity to take commercially reasonable steps to ensure that those who access the material are adults. Nothing about that requirement is exceptional.”

Arguments in the case will be held in the Supreme Court’s next term, which begins in October.