Can a state place age restrictions on pornography websites so that children cannot access their material? The U.S. Supreme Court will decide that critical question in its forthcoming opinion in the case Free Speech Coalition v. Paxton.
For those who’ve not been following this case, this is a decision worth paying close attention to. It will be of critical importance for future state and federal efforts to protect kids online, especially from pornography.
The case started with a lawsuit, brought by the trade association for the pornography industry, masking itself behind the name “Free Speech Coalition.” The association sued the state of Texas over a law, H.B. 1181, that requires pornographic websites doing business in Texas to “use reasonable age verification methods” to verify that a customer “is 18 years of age or older.” The law applies to any commercial entity that “knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors.” Companies that do not institute the required age verification will be subject to fines of up to $10,000 per day and up to $250,000 if a child is exposed to pornographic content because of a failure to verify his or her age.
The law was initially enjoined from taking effect by a district court in Texas, but then the Fifth Circuit stayed the injunction. So the law, although appealed up to the Supreme Court for review, has been in effect in Texas since November 14, 2023.
Texas’ law has already been making a significant impact. Texas Attorney General Ken Paxton has sued several large pornography websites under the law, including one in February 2024 against Aylo Global Entertainment, which runs several of the largest pornography websites, including Pornhub. Texas found that the company, instead of age verifying and restricting its material, immediately presents minors who access their websites with pornographic content. Rather than comply with the requirements of the law, PornHub opted to stop doing business entirely in Texas. Then in March 2024, Texas sued two more pornography companies, Multi Media LLC and Hammy Media, failing to provide sufficient screening to prevent minors from accessing their material. Texas has now secured a settlement with Multi Media LLC, in which the latter agreed to use an age verification service on its Chaturbate website to ensure compliance.
These are the kinds of results we want to see nationwide to protect America’s children.
Whether we will comes down to the Supreme Court’s decision in Free Speech Coalition v. Paxton. If the Court upholds the constitutionality of age-verification laws for pornography websites, it would pave the path for other states’ laws to go forward as well (there are now 23 states with laws similar to Texas’), and hopefully for a nationwide age-verification law like Senator Mike Lee’s (R-Utah) SCREEN Act. But if they don’t, future efforts to protect America’s kids will be imperiled.
So what should we expect in the Court’s ruling?
I expect the Court’s decision to grapple heavily with two important questions. First, what standard of review should be applied to age-verification laws for pornography websites? And second, how should the law and precedents apply, given the vast technological changes we’ve seen over the previous 20 years?
Those questions were the main themes of oral argument. When the Justices asked what standard of legal review should be applied, Texas argued for “rational basis,” the lowest level of review, whereas, the porn industry argued for “strict scrutiny,” the highest standard. The Justices seemed to land somewhere in between the two.
The Justices’ other main line of questioning focused on what the technological changes over the last 20 years mean for how effective filtering technology is. In Ashcroft v. ACLU (2004), the Court had found that age verification was not constitutional because content filters would be an “effective and less restrictive means” to protect minors.
I am cautiously optimistic that the Court will uphold the Texas law, mainly because the majority of the Justices recognized that content filters have been extremely ineffective in the era of smartphones and social media. They’ve also acknowledged that websites now have the technology to verify users’ age in ways that are anonymous and convenient, relieving the potential burden on adult speech.
Whether the Court overturns Ashcroft or issues a ruling mainly guided by other precedents, given the Justices’ acknowledgement of the vast changes in technology over the last 20 years, the eventual ruling in Free Speech Coalition v. Paxton will most likely allow states a way forward for age-restricting minors’ access to online pornography.
Justice Neil Gorsuch emphasized that we don’t want two separate constitutional regimes in our country—one for the online world and one for the real world. The goal should be to have those be as similar as possible. I am hopeful the Paxton ruling will help bring our governance of the virtual world more in line with our governance of the real world, rather than driving the two further apart.
Clare Morell is a fellow at the Ethics and Public Policy Center, and author of the forthcoming book, The Tech Exit: A Practical Guide to Freeing Kids and Teens from Smartphones.
The views expressed in this article are the writer’s own.
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