By Andrew Chung, John Kruzel
WASHINGTON (Reuters) -U.S. Supreme Court justices expressed worries on Wednesday over the availability of online pornography to minors as they weighed the legality of a Texas law that requires pornographic websites to verify the age of users, but also voiced concern over burdens imposed on adults to view constitutionally protected material.
The justices heard arguments in an adult entertainment industry trade group’s appeal of a lower court’s decision allowing the Republican-led state’s age-verification mandate. The lower court decided that the policy, intended to curb access by minors to online pornography, likely did not violate the U.S. Constitution’s First Amendment safeguard against government abridgment of speech.
The justices seemed to agree that states can try to keep adult material from minors. But they debated whether the important free speech implications at issue required the New Orleans-based 5th U.S. Circuit Court of Appeals to apply a stricter form of judicial review to the 2023 Texas law than the one it actually used that gave deference to legislators.
The challengers include the Free Speech Coalition, a trade association of adult content performers, producers and distributors, as well as companies that run pornographic websites including Pornhub.com and xnxx.com.
They have argued that online age verification stifles the free speech rights of adults and exposes them to risks of identity theft, extortion and data breaches.
The challengers have said steps such as content-filtering software or on-device age verification would better protect minors than laws like the one at issue while respecting the rights of adults. Some justices questioned the effectiveness of content-filtering.
“Kids can get online porn through gaming systems, tablets, phones, computers,” conservative Justice Amy Coney Barrett told Derek Shaffer, the lawyer arguing for the Free Speech Coalition. “Let me just say that content-filtering for all those different devices – I can say from personal experience – is difficult to keep up with. And I think that the explosion of addiction to online porn has shown that content-filtering isn’t working.”
Shaffer said content-filtering is technologically “better than ever.” Shaffer added that the state’s goal with the law “is a broader anti-porn interest in preventing willing adults from accessing this content. They want to make it more difficult. They want to make it costlier. They want to make it chilling.”
Allowing the age-verification requirement to take effect using the deferential judicial review employed by the 5th Circuit “could open the door to an emerging wave of regulations that could imperil free speech online,” Shaffer said.
The Texas measure is one of 19 similar ones enacted around the United States, primarily in Republican-governed states, as policymakers worry about how the proliferation of hardcore pornographic material online affects the wellbeing of minors.
It requires websites whose content is more than a third “sexual material harmful to minors” to have all users submit personally identifying information verifying they are at least age 18 to gain access.
Supreme Court precedents have long protected access by adults to non-obscene sexual content on First Amendment grounds, including a 2004 ruling that blocked a federal law similar to the Texas measure.
‘SOCIETAL PROBLEMS’
Texas in a legal filing said that children, through smartphones and other devices, have easy access to an “avalanche of misogynistic and often violent smut” including “graphic depictions of rape, strangulation, bestiality and necrophilia.”
“Do you dispute the societal problems that are created both short-term and long-term from the rampant access to pornography for children?” Kavanaugh asked Shaffer.
The issue, Shaffer responded, is bigger than pornography alone, highlighting the current debate over “whether all sorts of things involving screens and the internet and social media and interactions over the internet, whether those are unhealthy for children.”
Liberal Justice Ketanji Brown Jackson, questioning Texas Solicitor General Aaron Nielson, asked, “How far can a state go in terms of burdening adults in showing how old they are?”
“It seems to me that you’re conceding that at some point a state would not be able to require an adult to jump through a million hoops to provide their age,” Jackson told Nielson.
President Joe Biden’s administration urged the justices to direct the 5th Circuit to apply a tougher review.
Liberal justice Elena Kagan expressed concern about applying a watered-down version of the most stringent form of judicial review, known as strict scrutiny, to assess this law. Kagan said that “you relax strict scrutiny in one place – and all of a sudden strict scrutiny gets relaxed in other places.”
U.S. District Judge David Alan Ezra issued a preliminary injunction in 2023, blocking the law.
The 5th Circuit ruled in 2024 that the plaintiffs were unlikely to succeed in their First Amendment challenge to the age-verification requirement, lifting Ezra’s injunction on that provision. It upheld Ezra’s injunction against another provision requiring websites to display “health warnings” about viewing pornography.
The Supreme Court last year declined to halt enforcement of the law while the case proceeded. Its ruling is expected by the end of June.
(Reporting by Andrew Chung and John Kruzel; Editing by Will Dunham)
