Representative image of online pornographic content.
Credit: iStock photo
The US Supreme Court declined on Tuesday to block a Texas law requiring online age verification in order to access pornographic websites in a case pitting the Republican-led state's effort to keep adult content away from minors against constitutional free speech protections.
With no publicly noted dissents, the justices denied a request by a trade group representing adult entertainment performers and other challengers to the law to put on hold a lower court's ruling that the measure likely did not violate the US Constitution's First Amendment safeguards against government interference with freedom of speech.
The 2023 law requires any websites whose content is more than a third "sexual material harmful to minors" to require all users, including adults, to submit personally identifying information verifying they are at least 18 years old to gain access. Several other states have enacted similar laws.
The Texas law's challengers, represented by the American Civil Liberties Union and others, have said that it poses security and privacy concerns by exposing users to possible identity theft, tracking and extortion. They also said that its effectiveness is undermined given that it would not restrict social media or search engines, where pornography is rampant.
In any event, the challengers added, content-filtering software works better to protect minors than laws like this.
The plaintiffs contend that the case is straightforward given the Supreme Court's own precedents that treat non-obscene sexual content as constitutionally protected. These precedents allow governments to limit access by minors to sexual material but, under the First Amendment, they may not burden access by adults to such content.
Texas said its law is necessary because smartphones have made it much easier for children to instantly access "virtually unlimited" hardcore pornography.
The law, Texas said in a filing, "simply requires the pornography industry that (makes) billions of dollars from peddling smut to take commercially reasonable steps to ensure that those who access the material are adults".
The plaintiffs include the Free Speech Coalition, a trade association of adult content performers, producers and distributors, as well as companies that run several pornographic websites including Pornhub.com and xnxx.com.
Senior US District Judge David Alan Ezra issued a preliminary injunction in Austin blocking the law on the day before it was set to take effect. Ezra noted that "constitutionally protected speech will be chilled" and could sweep in non-porn websites hosting R-rated movies or sex education materials for high school students.
The New Orleans-based 5th US Circuit Court of Appeals allowed the law's enforcement while it reviewed the case, and in March ruled that the plaintiffs were unlikely to succeed in their First Amendment challenge to the age verification requirement, lifting Ezra's injunction on that provision.
The 5th Circuit upheld the judge's injunction against a separate provision of the law requiring websites to display "health warnings" about the effects of viewing pornography.