The Supreme Court on Friday rejected a challenge to a Texas law that seeks to limit minors’ access to pornography on the internet, ruling that it does not violate the First Amendment to require people to verify their age through measures like the submission of government-issued IDs.
The vote was 6 to 3, with the court’s three liberal members in dissent.
The Texas law applies to any commercial website “more than one-third of which is sexual material harmful to minors.” It requires such sites to use one of several methods to verify that users are 18 or older. It does not allow companies to retain the information their users submit. But the challengers said adults would be wary of supplying personal information for fear of identity theft, tracking and extortion.
More than 20 other states have enacted similar laws.
A trade group representing companies that produce sexual materials, along with an adult performer, challenged the Texas law, saying that it violated the First Amendment right of adults.
Judge David Alan Ezra of the Federal District Court in Austin blocked the law, saying it would have a chilling effect on speech protected by the First Amendment.
By verifying information through government identification, the law allows the government “to peer into the most intimate and personal aspects of people’s lives,” wrote Judge Ezra, who was appointed by President Ronald Reagan.
“It runs the risk that the state can monitor when an adult views sexually explicit materials and what kind of websites they visit,” he continued. “In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech.”
A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit disagreed. “The age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” Judge Jerry E. Smith, who was also appointed by Mr. Reagan, wrote for the majority. He was joined by Judge Jennifer W. Elrod, who was appointed by President George W. Bush.
Judge Patrick E. Higginbotham, another Reagan appointee, dissented, saying that the law chills free speech rights.
When the majority declined to put its decision on hold while the challengers sought Supreme Court review, Judge Higginbotham again dissented, saying that the case “begs for resolution by the high court” because the majority opinion “conflicts with Supreme Court precedent.”
After the Fifth Circuit’s ruling, Pornhub, one of the most visited sites in the world, suspended its operations in Texas.
In April of 2024, the Supreme Court refused to block the law while the appeal moved forward. The law “has been permitted for more than a year, and the sky has not fallen,” Texas’ lawyers told the justices.
The appeals court’s majority relied on a 1968 Supreme Court decision, Ginsberg v. New York, which allowed limits on the distribution of sexual materials to minors, including what the justices called “girlie magazines” that fell well short of obscenity, a form of speech unprotected by the First Amendment.
That decision applied a relaxed form of judicial scrutiny. But in Ashcroft v. American Civil Liberties Union in 2004, the justices blocked a federal law, the Child Online Protection Act, which was similar to the one from Texas. They applied the most demanding form of judicial review — strict scrutiny — to find that the law impermissibly interfered with First Amendment rights.
Applying that test, the Supreme Court ruled that the federal law violated the First Amendment, citing the availability of less restrictive alternatives like content-filtering software that “would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”
Judge Smith, writing last year for the Fifth Circuit majority, said the 1968 decision was the one that mattered. He reasoned that the Supreme Court’s later Ashcroft decision contained “startling omissions” that undercut its precedential force.
The challengers, represented by, among others, the American Civil Liberties Union, told the justices that the Fifth Circuit was not entitled to second-guess the Supreme Court.
“This case presents the rare and noteworthy instance in which a court of appeals has brazenly departed from this court’s precedents because it claims to have a better understanding of the law,” they wrote.
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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