The US Supreme Court on Friday upheld a Texas law that mandates that adult consumers of pornographic material verify their ages before accessing the material. Applying intermediate scrutiny, the court held that the law is likely constitutional under the First Amendment.
The law, HB 1181, only applies to “commercial” entities, including “corporation[s], limited liability compan[ies], partnership[s], limited partnership[s], sole proprietorship[s], or other legally recognized business entit[ies],” that distribute “sexual material harmful to minors.” To distribute these sexually explicit materials, such commercial entities must utilize a “reasonable age verification method” to ensure that the prospective user is 18 years of age or older. This includes either (1) providing digital identification or 2) complying with a “commercial age verification system” that verifies age using either a government-issued ID or another “commercially reasonable method” that relies on transactional data.
The US Court of Appeals for the Fifth Circuit upheld the law using rational basis review—the lowest standard of judicial scrutiny. It ruled that “the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography” and that “[t]herefore, the age-verification requirement does not violate the First Amendment.” On appeal to the Supreme Court, the Free Speech Coalition, counsel for the adult entertainment industry, stated that the law “imposes significant burdens on adults’ access to constitutionally protected expression.”
Writing for the majority in Free Speech Coalition, Inc. v. Paxton, Justice Clarence Thomas emphasized that minors are “more susceptible to the harmful effects of sexually explicit content, and less able to appreciate the role it might play within a larger expressive work.” The court held that intermediate scrutiny was the appropriate level of judicial scrutiny in this case because HB 1181 “does not regulate the content of protected speech” either “on its face” or “in its justification,” which would warrant the application of strict scrutiny.
Additionally, the majority recognized that the law does “burden” adults’ right to free speech, so it cannot “escape[ ] all First Amendment scrutiny”:
We agree that H. B. 1181 targets speech that is obscene for minors based on its communicative content. But, where the speech in question is unprotected, States may impose “restrictions” based on “content” without triggering strict scrutiny… Because speech that is obscene to minors is unprotected to the extent that the State imposes only an age-verification requirement, H. B. 1181’s content-based restriction does not require strict scrutiny. The law is content based in the same way that prohibitions of “defamation,” “fraud,” and “incitement” are.
Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, issued a dissenting opinion, arguing that “[Texas] should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary.” Kagan wrote that “this Court should subject HB 1181 to strict scrutiny. That is because HB 1181 covers speech constitutionally protected for adults; impedes adults’ ability to view that speech; and imposes that burden based on the speech’s content. Case closed.”
According to The Age Verification Providers Association, at least 24 states have passed laws requiring age verification to access pornographic materials online.
