The internet is not for porn without proof of age, the Supreme Court held on Friday in a 6-3 decision that upholds a Texas law requiring porn sites to verify that visitors are 18 or older.
“The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” Justice Clarence Thomas wrote in a 36-page opinion that said such a restriction does not require the strictest level of First Amendment scrutiny. “Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment.”
That affirms the constitutionality of H.B. 1181, a statute passed by large bipartisan majorities and signed into law by Texas Gov. Greg Abbott (R) in 2023.
Its text requires commercial sites hosting content that is at least one-third “sexual material harmful to minors” (the definition goes on for multiple paragraphs and specifies depictions of “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act”) to use “reasonable age verification methods” to block people under 18.
The statute further defines those methods as either requiring a form of digital ID or using “a commercial age verification system” that leverages either government IDs or “public or private transactional data,” but bans them from retaining any such identifying data.
The law sets fines of $10,000 a day for not complying with the age-verification mandate (plus up to $250,000 for each time a minor gains access) and $10,000 for each case of retaining somebody’s identifying data.
(H.B. 1811 also requires porn sites to post state-government health warnings that, among others, call porn “potentially biologically addictive,” “proven to harm human brain development” and “associated with low self-esteem and body image” while saying it “increases the demand for prostitution, child exploitation, and child pornography”; the opinion does not address that compelled speech.)
An ‘Ordinary and Appropriate Means’ of Verifying Age
In the opinion, Thomas calls an age-verification requirement “an ordinary and appropriate means of enforcing an age limit,” citing “the long, widespread, and unchallenged practice of requiring age verification for in-person sales of material that is obscene to minors.” For example, the 1968 case Ginsberg v. New York upheld a New York law limiting sales of porn in print.
Thomas did find a more recent precedent persuasive: Reno v. American Civil Liberties Union, the 1997 case that overturned the Communications Decency Act (CDA) while preserving Section 230 of that 1996 law, the provision that holds online forums generally not liable for what their users post and allows them to police those posts as they wish.
The age-verification defenses in that law, the justice writes, were “illusory” with the technology of 1997, while the CDA’s restrictions on “indecent” and “patently offensive” content “swept far beyond obscenity.”
The justice brushes off concerns over data breaches, writing that the entities covered by the Texas law “have every incentive to assure users of their privacy.” Adding that “the use of pornography has always been the subject of social stigma,” Thomas says that “social reality has never been a reason to exempt the pornography industry from otherwise valid regulation.”
The Cost of Free Speech
In a dissenting opinion, Justice Elena Kagan agreed that “the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm,” that states hold “a compelling interest in shielding children from speech of that kind,” and that “children have no constitutional right to view it.” But, H.B. 1181 goes too far in trying to solve that problem, she says.
“Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so,” she writes. “The First Amendment prevents making speech hard, as well as banning it outright.”
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Kagan’s dissent focuses in particular on the risks of providing the forms of identification required by that law: “It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to… who knows? The operator might sell the information; the operator might be hacked or subpoenaed.”
She would have required Texas “to ensure it is not undervaluing the interest in free expression” and adopt a standard that can “better protect adults’ First Amendment freedoms.”
As the majority opinion notes, 22 states now have laws requiring some form of age verification to view porn online, leading many porn sites to block access to everybody in those states, which, in turn, has led people to use VPN services to spoof their location.
Privacy advocates have repeatedly criticized current age-verification options for the amount of private data they require exposing to a site or a verification service, although developers of such tools say they can advance privacy-preserving solutions. In April, Google announced that it was integrating a “zero-knowledge-proof” system into Google Wallet (and making that framework available as open-source software) to allow users to authenticate their age while cloaking the rest of their identity.
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The debate goes beyond viewing porn online. Texas and other states have also passed or are considering laws mandating similar age limits to use app stores, and a Senate bill two years ago would have mandated age verification to use social media.
Disastrous for Texans?
This case was Free Speech Coalition, Inc., et al. v. Paxton, Attorney General of Texas. Last April, the court rejected an emergency request to block the law but in July agreed to take up the case brought by a group of porn site operators against Texas Attorney General Ken Paxton (R).
In a statement, Alison Boden, Executive Director of the Free Speech Coalition, said the decision “is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.
“As it has been throughout history, pornography is once again the canary in the coal mine of free expression,” she said. “The government should not have the right to demand that we sacrifice our privacy and security to use the internet. This law has failed to keep minors away from sexual content yet continues to have a massive chilling effect on adults.”
AG Paxton cheered the court’s decision as “a major victory for children, parents, and the ability of states to protect minors from the damaging effects of online pornography.
“Companies have no right to expose children to pornography and must institute reasonable age verification measures,” he added. “I will continue to enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials.”
Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, and Brett M. Kavanaugh joined in the majority opinion, while Justices Ketanji Brown Jackson and Sonia Sotomayor joined in the dissent.
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