CNN
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The Supreme Court on Friday upheld a Texas law that requires age verification for pornographic websites in one of the most closely watched First Amendment cases to arrive at the high court in years.
The adult entertainment industry had challenged the Texas law as violating the Constitution because it restricted the ability of adults to access protected online speech.
Justice Clarence Thomas wrote the opinion for a 6-3 court divided along ideological grounds with the court’s three liberals dissenting.
“The statute advances the state’s important interest in shielding children from sexually explicit content,” Thomas wrote. “And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identification and sharing transactional data.”
Texas’ law requires any website that publishes a substantial amount of content that is “harmful to minors” to verify the age of users. The challengers said the law forces adults to identify themselves – such as by providing an ID – before accessing pornography, which the group’s lawyers said violates access to free speech online because it would “chill” adults’ access to that content. Texas’ law is similar to more than a dozen others across the country that require users to submit some form of proof of adulthood.
The Supreme Court, over the past many decades, has embraced a robust view of the First Amendment. Last year, it suggested that social media companies are entitled to First Amendment protection for their content moderation decisions, for instance. In 2023, the court set a higher standard for prosecuting “true threats” in the case of a man who was convicted of stalking a songwriter. A majority sided with a high school cheerleader in 2021 who argued she could not be punished by her public school for posting a profanity-laced caption on Snapchat when she was off school grounds.
But it has taken a more nuanced approach when it comes to laws attempting to limit minors’ access to obscene material. The Supreme Court in 1997 unanimously invalidated provisions of a federal law intended to protect minors from indecent material online because it also imposed First Amendment burdens on adults. But in reviewing the Texas law, the 5th US Circuit Court of Appeals relied instead on a 1968 precedent in which the Supreme Court let stand a New York law barring the distribution of obscene material to minors.
Throughout the Texas case, there were signs that a majority of the court might side with Texas. The trade group representing the adult entertainment industry asked the justices last year to block the Texas law while their appeal was considered. But the Supreme Court rejected that request at the time, allowing the law to remain in effect temporarily. It did so in a one-sentence order without explanation.
This time, the Supreme Court was asked specifically what level of “scrutiny” must be applied to the law. That’s a legal term that, normally, decides a First Amendment case. If the highest level of scrutiny – known as “strict scrutiny” – applies, it makes it nearly impossible for a law restricting protected speech to stand. The lowest level of scrutiny, in this case “rational basis,” almost always works out in the government’s favor.
The appeals court applied rational-basis review and found that Texas has a “legitimate interest in preventing minors’ access to pornography,” and so it upheld the law.
During oral arguments in January, several of the justices signaled they might send the case back to the 5th Circuit to have the appeals court decide if it clears the strict scrutiny hurdle. Several of the conservatives suggested during arguments that it appeared the Texas law might be able to withstand strict scrutiny.
In order to satisfy strict scrutiny, a government must have a “compelling” interest to infringe on a constitutional right and its law must be “narrowly tailored” to address that interest without sweeping too broadly.
During oral arguments, several of the court’s conservatives threw cold water on the adult entertainment industry’s proposed solution to the issue of minors accessing pornography online: content filtering software. The existence of those systems, those justices said, suggested that Texas could have addressed the problem of minors accessing porn through a more limited means.
But at least three justices signaled that approach was insufficient, including Justice Amy Coney Barrett, who drew from personal experience when she told the lawyer that the software was far from being foolproof. Barrett has seven children.
“Kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with,” she said.
“And I think that the explosion of addiction to online porn has shown that content filtering isn’t working,” Barrett added.
Several members of the court also questioned the Supreme Court’s 1960s-era precedents given the nature of today’s pornography. Chief Justice John Roberts repeatedly questioned the usefulness of decades-old precedents as the nature of technology and porn has changed.
“One of the things that’s striking about the case,” Roberts said in January, was the “dramatic change” in people’s ability to access pornography online compared to the “brick-and-mortar” magazine stores of the past.
