Texas Takes Center Stage: Supreme Court to Deliberate on Controversial Anti-Porn Legislation

FILE – The Supreme Court at dusk in Washington.

Jon Elswick/AP

hide caption

toggle caption

Jon Elswick/AP

The U.S. Supreme Court is set to hear arguments on Wednesday regarding a case tied to a Texas statute that requires adult users of pornographic websites to verify their age prior to accessing the content. This case has frustrated advocates for free speech, along with the adult entertainment sector, and, amidst the controversy, has encouraged other states to enact their own iterations of the legislation.

In Free Speech Coalition et al. v. Paxton, critics of the Texas statute (represented by the ACLU) will implore the justices to reverse the law on the basis that it unconstitutionally violates free speech rights for adults.

In legal documents, they contend that while the statute aims to reduce minors’ access to sexually explicit online content, it is excessively ambiguous and “places substantial burdens on adults’ access to constitutionally protected expression.” They further assert that a user, including adults, is required to provide personal identifying information to obtain access to the content, resulting in potential security and privacy issues.

The legislation, endorsed by Texas Gov. Greg Abbott in 2023, mandates pornographic sites to authenticate official documentation, such as government-issued identification, or incur substantial penalties. According to the law’s wording, a website that features “one-third” sexual content is classified as a site that requires age verification. However, social media platforms are exempted. The Texas statute also mandates that sites display health warnings on the homepage stating that viewing pornography may be addictive, hampers brain function, and is linked to low self-esteem and body image, among other concerns.

Representatives for Texas asserted in their submission that proponents of the law have not demonstrated a single individual whose rights have been “chilled” by it.

“Texas aims to shield minors from some of the most salacious sexual content imaginable. And the method chosen by Texas is fitting,” they stated in their legal submission. “Texas has limited its focus to websites explicitly dedicated to pornography, has permitted them to comply through commonly used age-verification technology, and has not instituted criminal consequences. Such a modest but significant statute meets any level of scrutiny.”

Moreover, they emphasize the perceived addictive properties of pornography, arguing it ultimately harms minors. “Online pornographers are astute. Similar to social media companies, they employ intricate algorithms to draw in users,” they stated in response to the Free Speech Coalition’s petition. “Their content induces neurological reactions similar to those found in gambling.”

Notwithstanding the legal opposition since the law’s enactment, Texas’ age-verification statute remains intact prior to the hearing on Wednesday.

A decision from U.S. District Judge David Ezra last September briefly halted the law. Ezra noted it’s ambiguous whether the warning labels, which state they are from “Texas Health and Human Services,” are actually supported by verified findings from that agency.

The judge indicated in his ruling that the “state provides virtually no evidence that this is an effective approach to combat minors’ access to sexual content” and that the warnings include wording that most minors would likely not comprehend.

A divided Fifth Circuit overturned that injunction, asserting the age-verification requirement does not contravene the First Amendment. “The appropriate standard of review is rational-basis, not strict scrutiny,” the ruling stated. “Employing rational-basis review, the age-verification requirement is rationally connected to the government’s legitimate aim of preventing minors’ access to pornography.”

States persist in enacting age verification regulations

A number of other states have enacted statutes requiring age verification for pornographic websites, after Louisiana was the first state to implement such a law in January 2023.

The Free Speech Coalition, the adult entertainment group contesting the Texas law, reports that age-verification laws in Florida, South Carolina, and Tennessee came into effect at the beginning of the new year. At least 19 states have adopted some variation of this policy in recent years, according to the organization.

Republican lawmakers expressed interest in seeking a federal version of the law in amici briefs submitted in the Texas case. Utah Senator Mike Lee and 19 other Republican members of Congress wrote to the Supreme Court backing the Texas law, suggesting that the policy presents a minor barrier for adults, while better safeguarding children.

Regardless of their popularity, these statutes still encounter legal challenges. On Monday, the 6th U.S. Circuit Court of Appeals panel ruled that Tennessee’s law can proceed while a lawsuit remains ongoing.