The Supreme Court has upheld a Texas law requiring age verification to access adult websites, saying despite First Amendment claims, the law “only incidentally burdens the protected speech of adults.” The ruling, in Free Speech Coalition v. Paxton, opens the door to age-gating in states nationwide.
The court ruled in Texas’ favor by a margin of six to three — with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting — and the majority opinion was delivered by Clarence Thomas. “The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective,” writes Thomas. “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.”
FSC v. Paxton, argued in January, concerns the Texas law HB 1181, which requires sites with a large proportion of sexually explicit material to use “reasonable age verification methods” to make sure users are at least 18 years old. It’s one of numerous age verification laws enacted across the country for adult content in recent years, and it reached the Supreme Court after being upheld by the Fifth Circuit Court of Appeals. In taking the case, the Supreme Court effectively decided to reconsider a 2004 ruling, Ashcroft v. ACLU, in which it determined a similar rule — the Child Online Protection Act — violated the First Amendment.
The court says that conclusion (as well as an earlier one on a similar age verification provision in the Communications Decency Act) is no longer appropriate thanks to the forward march of technology. “With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content — both benign and obscene — at almost any time and place, with an ease that would have been unimaginable at the time of Reno and Ashcroft II,” it says.
Now, “adults have no First Amendment right to avoid age verification” that’s intended to block content deemed obscene for minors, the court ruled. The ruling hinged largely on the court declining to apply the highest level of scrutiny to the law — a measure that’s required in many speech-related cases and typically is difficult to overcome. Applying that scrutiny might “call into question all age-verification requirements, even longstanding in-person requirements” to access content that’s outlawed for minors, writes Thomas.
At least 21 other states have “materially similar” age verification rules for adult content, the ruling notes. It also notes that some sites have already implemented age verification rules, though others — primarily Pornhub — have ceased operation in states like Texas instead. Pornhub declined comment on whether, and how, the ruling might affect its operations.
There are several possible ways to enact online age verification, but critical evaluations have concluded that few (if any) methods manage to effectively block minors’ access without potentially compromising adults’ privacy — posing much higher risks than flashing an ID at the door of a brick-and-mortar store. At the time of Ashcroft v. ACLU, the Supreme Court determined that parent-controlled content filters could provide comparable protections without the same risks. But during oral arguments, justices seemed sympathetic to arguments that the internet had become meaningfully more dangerous to children and that these optional methods had failed.
The three dissenting justices argued that HB 1181 directly impacted legal speech for adults and should have been subject to the high bar of strict scrutiny, even if it’s possible it would have passed it. “H. B. 1181’s requirements interfere with — or, in First Amendment jargon, burden — the access adults have to protected speech: Some individuals will forgo that speech because of the need to identify themselves to a website (and maybe, from there, to the world) as a consumer of sexually explicit expression,” the dissent says.
In a statement, Alison Boden, executive director of the Free Speech Coalition — which represents the adult media industry — said that “as it has been throughout history, pornography is once again the canary in the coal mine of free expression. 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.”
While FSC v. Paxton deals with age verification for pornographic content, a similar fight is brewing over verification measures for social media and other web services. Texas Governor Greg Abbott last month made Texas the second state (after Utah) to require mobile app stores to confirm user ages, despite lobbying against the bill by Apple.
