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(WASHINGTON) — With online access to pornography and other sexually explicit content easier than ever before, the U.S. Supreme Court on Wednesday will take a fresh look at government efforts to impose new safeguards for children by requiring adult websites to conduct electronic age verification.
The case, brought by an adult entertainment industry trade group and several content creators, challenges a 2023 Texas law that says sites containing more than one-third of “sexual material harmful to minors” must verify that a user is at least 18 years old or face civil penalties up to $10,000 per day.
The law, HB 1181, mandates that adult sites implement a system to check a user’s digital identification or government-issued ID using a “commercially reasonable method.” They are not allowed to retain personal information, but the law offers no other requirements for data security and privacy.
Content platforms like Pornhub, one of the most popular websites in the world, have chosen to stop operating in Texas rather than comply with the law. They argue it violates the First Amendment and unfairly targets the porn industry since search engines and social media apps are exempt.
The case, Free Speech Coalition v. Paxton, pits a growing nationwide effort to strengthen protections for minors online against long-standing constitutional protections for sexual material that have helped bolster the rise of a booming multi-billion dollar business.
“More people watch porn and view porn each year than vote and read the newspaper,” said Lisa Blatt, a veteran Supreme Court litigator with Williams & Connolly LLP. A 2016 study in the Journal of Sexual Medicine found that up to 70% of men and 40% of women have consumed pornography within the past year in the U.S.
American teenagers have reported similar levels of exposure to pornography in a number of studies conducted over the past three years. Public health experts say young people who view sexually explicit content are more likely to start having sex earlier, engage in unsafe sex, and have multiple partners.
Texas is among nineteen states that have recently enacted age-verification requirements for adult content online, according to the Age Verification Providers Association.
The state has said that online age verification should be no more controversial or unconstitutional than the common practice of verifying a customer’s age before the purchase of an adult magazine at a newsstand or purchasing liquor at a bar.
Supreme Court precedent has set a high bar for laws that infringe on individual free speech rights even if they are meant to advance another compelling public interest, such as protecting kids.
Twenty years ago in a remarkably similar case — Ashcroft v. ACLU — the court struck down federal legislation that would have required age verification to view sexually explicit material. The decision instead put the onus on parents and technology companies to utilize less burdensome content-filtering software.
Supporters of the Texas law say those tools have proven ineffective and that evolving technology has changed the constitutional calculus for whether asking porn producers to act as gatekeepers violates the First Amendment.
“It’s time to think again about what is a mechanism that can achieve a legitimate objective of states protecting children from what is increasingly violent and misogynistic pornography online,” said Iain Corby, executive director of the Age Verification Providers Association, an international trade group made up of technology companies. “It’s possible to prove your age entirely on your own cell phone, so no personal data need ever leave the palm of your hand.”
An rapidly evolving industry of third-party age verification services and apps, Corby said, has made the process quick, secure, and free — a far cry from more cumbersome options of two decades ago.
“Because no one disputes that Texas can prevent kids from accessing hardcore pornography, this case is about means, not ends,” the state told the Court in its legal briefing. “And the means Texas has chosen is appropriate.”
Civil liberties groups argue that the constitutionality question remains clear cut.
“The government cannot make it illegal to publish certain sexual content online without verifying the age of users first, and yet that’s exactly what states are now doing,” said Vera Eidelman, an ACLU attorney who focuses on free speech litigation.
Eidelman argues that the Texas law robs adults who want to legally view sexually-explicit material the right to anonymity, and potentially puts their private information at risk of abuse.
“It’s really different to show your ID in person than it is to have to offer up personal identifying information online, creating potential targets for data breaches, hackers potentially creating much more of a record of what you are looking at,” Eidelman said.
She also claims that the Texas law could ensnare a much wider range of websites than those selling pornography, such as those hosting sexual health education resources or R-rated content.
“Young people certainly deserve our protection, but whenever the government is passing a law in the name of protecting kids, I think there are serious questions to be asked about whether what it’s really doing is saying the [content] is bad for everyone,” said Eidelman. “That’s exactly what the First Amendment exists to protect against.”
The court is expected to deliver a decision in the case by the end of June.
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