Supreme Court rules for Texas age verification law • The Register
The US Supreme Court has ruled that Texas’ age certification law for viewing sexually explicit content is valid, meaning that viewers of such material will have to prove their age.
The dispute started in 2023, when the Lone Star State’s legislature approved Texas House Bill 1181, which requires viewers of such material to prove they’re over 18 with a digital ID, a government-issued ID, or transactional-data checks.
A coalition of adult entertainment providers known as the Free Speech Coalition sued on free speech grounds, arguing that an age check violated the rights of adults who wanted to view adult material. A district court ruled for the plaintiffs and imposed a temporary injunction in 2023, then the Fifth Circuit Court of Appeals reversed and ruled against the adult industry last year, paving the way for a Supreme Court challenge.
In the ruling issued Friday, Justice Clarence Thomas, writing for the 6-3 majority, said that First Amendment protections did not apply in this case because preventing minors from viewing explicit material was a valid power for the states to wield.
“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person – adult or child – has a First Amendment right to access such speech without first submitting proof of age,” he wrote [PDF].
Texas House Bill 1181 requires any commercial website whose content is more than one-third “sexual material harmful to minors” to verify that Texas-based users are at least 18.
As it has been throughout history, pornography is once again the canary in the coal mine of free expression
“As it has been throughout history, pornography is once again the canary in the coal mine of free expression,” said Alison Boden, executive director of the Free Speech Coalition.
“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. The outcome is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”
A spokesperson declined to comment directly but referred The Register to the ACLU, which was also supporting its case.
“The Supreme Court has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials,” said Cecillia Wang, national legal director of the American Civil Liberties Union.
“The Texas statute at issue shows why those precedents applying strict scrutiny were needed. The legislature claims to be protecting children from sexually explicit materials, but the law will do little to block their access, and instead deters adults from viewing vast amounts of First Amendment-protected content.”
While arguing that pornography should be available is a tricky moral argument, the repercussions of the Supreme Court rulings could go well beyond smut and into free speech in general. Justice Elena Kagan, writing the dissent on behalf of the three liberal justices, said that the case made a disturbing distinction in the First Amendment as it relates to minors and adults alike.
“To enter a covered website – with all the protected speech just described – an individual must verify his age by using either a ‘government-issued identification’ like a driver’s license or ‘transactional data’ associated with things like a job or mortgage,” she wrote.
“For the would-be consumer of sexually explicit materials, that requirement is a deterrent: It imposes what our First Amendment decisions often call a ‘chilling effect.'”
The crackdown is spreading. By May 20, 23 other states have passed laws similar to Texas’ HB 1181. We tried to get comments from PornHub, a popular adult site in the US, but they didn’t respond.
Where such laws have been introduced in the past, some adult websites have simply stopped providing access in those states. This has been a major boon to the VPN industry, in some cases boosting demand by over 1,000 percent in Florida after a similar law was passed there. ®
