Supreme Court Rules on Age Verification for Porn Sites in Case Challenging First Amendment Rights

The Supreme Court upheld a Texas law Friday that requires adult websites to verify the age of their users, concluding that the policy does not violate the First Amendment.

In a 6-3 decision, the high court deemed the law “appropriately tailored,” backing a prior Fifth Circuit decision that found states should be able to prevent youngsters from viewing smut online.

“The statute advances the State’s important interest in shielding children from sexually explicit content,” conservative Justice Clarence Thomas wrote in the majority opinion.

“And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identification and sharing transactional data.”

Texas passed the law, House Bill 1181, in 2023, applying to companies where one-third of the content is considered detrimental to minors.

The measure stipulates that websites take “reasonable” age verification steps and levies a $ 1,000-a-day penalty on violators.

Pornhub had stopped operations in Texas and other states with similar laws due to concerns it couldn’t comply with the age verification policy. At least 24 states had passed similar age verification laws that had been blocked by the lower courts.

The Free Speech Coalition, which represents the adult entertainment industry, had sued to nix HB 1181. The New Orleans-based Fifth Circuit Court of Appeals had upheld the law, prompting the Supreme Court challenge.

The plaintiffs had expressed fears that the age verification rules would lead to identity theft and cause other other compliance problems.

But Thomas wrote that the “specific verification methods that H. B. 1181 permits are … plainly legitimate.”

“Verification can take place on the covered website itself or through a third-party service,” he noted. “Other age-restricted services, such as online gambling, alcohol and tobacco sales, and car rentals, rely on the same methods.”

Thomas also brushed aside arguments that, due to the stigma of pornography use, adults would not want to submit to age verification, suggesting that third-party services can ensure adequate privacy.

Liberal Justice Elena Kagan wrote the dissent for the left flank of the court. She acknowledged that “[n]o one doubts that the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm.”

But she argued that the Texas law went too far.

“Speech that is obscene for minors is often not so for adults. For them, the category of obscene—and therefore unprotected speech—is narrower,” she wrote. “So adults have a constitutional right to view the very same speech that a State may prohibit for children.”

“What if Texas could do better—what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech?”

Texas Attorney General Ken Paxton, a Republican who is vying for the Senate next year, hailed the 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 said in a statement. “I will continue to enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials.”

Justices had held oral arguments in Free Speech Coalition, Inc. v. Paxton back in January. Conservative Justice Samuel Alito went viral for asking whether erotica powerhouse Pornhub carries cultural content similar to “the old Playboy magazine.”

“You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?” Alito asked counsel at one point to audible laughs, recalling the longstanding joke about men buying Hugh Hefner’s venerable title “for the articles.”