WASHINGTON — The Supreme Court on Wednesday considers whether to strike down a Texas law aimed at preventing young people from accessing pornographic content online.
The 2023 law is aimed at restricting minors’ access to sexual material, but a challenge led by a pornography industry group called the Free Speech Coalition says it violates the free speech rights of adults who want to access the same content.
The measure requires adult websites to verify the ages of all users, usually by viewing government-issued identification, such as driver’s licenses.
Assisted by the American Civil Liberties Union, the challengers say the law violates the Constitution’s First Amendment because it places a “content-based burden” on adults’ access to speech.
They cite a 2004 Supreme Court ruling that found a federal law also aimed at restricting access to pornography, called the Child Online Protection Act, was most likely unconstitutional.
Among the issues before the justices is whether the Texas law is subject to “strict scrutiny,” a mode of judicial review that requires judges to analyze whether a government action that infringes on free speech serves a compelling interest and was “narrowly tailored” to meet that goal.
Texas Attorney General Ken Paxton, a Republican who is defending the law, said in court papers that it is no different from similar measures that apply to brick-and-mortar adult stores requiring customers to show their identification.
“Nevertheless, petitioners insist that because they have moved their business online, the First Amendment protects their right to distribute a nearly inexhaustible amount of obscenity to any child with a smartphone,” he wrote.
Texas is relying in part on Supreme Court precedent — a 1968 ruling that endorsed the authority of states to prevent minors from accessing material deemed harmful to them.
In the new case, a federal judge had ruled that the provision at issue was problematic because it did not merely restrict access to minors.
The New Orleans-based 5th U.S. Circuit Court of Appeals subsequently ruled for Texas and refused to put its ruling on hold pending further review.
After the appeals court ruling, several online pornography platforms, including Pornhub, prevented people in Texas from accessing their sites out of concern about the provision’s going into effect.
The Supreme Court in April declined to block the law while the challengers appealed.
The Biden administration filed a brief urging the court to send the case back to the court of appeals because it had failed to analyze the law using strict scrutiny. Solicitor General Elizabeth Prelogar wrote that even under that standard, it would be possible to enact an age verification requirement.
The court, she said, “should make clear that the First Amendment does not prohibit Congress and the states from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet.”
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