"This requirement furthers the lawful end of preventing children from accessing sexually explicit content."
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On Friday, the Supreme Court ruled 6 to 3 in favor of Texas in the case surrounding Texas' law requiring ID to watch adult content online. A group of people in the porn industry brought a challenge to the law, which made its way to the high court, arguing that the legal test of strict scrutiny should be applied.
The majority opinion, written by Justice Clarence Thomas, stated, "Texas, like many States, prohibits the distribution of sexually explicit content to children. Tex. Penal Code Ann. §43.24(b) (West 2016). But, although that prohibition may be effective against brick-and-mortar stores, it has proved challenging to enforce against online content. In an effort to address this problem, Texas enacted H. B. 1181, Tex. Civ. Prac. & Rem. Code Ann. §129B.001 et seq. (West Cum. Supp. 2024), which requires certain commercial websites that publish sexually explicit content to verify the ages of their visitors. This requirement furthers the lawful end of preventing children from accessing sexually explicit content. But, it also burdens adult visitors of these websites, who all agree have a First Amendment right to access at least some of the content that the websites publish. We granted certiorari to decide whether these burdens likely render H. B. 1181 unconstitutional under the Free Speech Clause of the First Amendment. We hold that they do not."
"The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content. H.B. 1181 is a constitutionally permissible exercise of that authority," Thomas added.
In 2023, Texas lawmakers passed HB 1181, which required that all pornographic sites check the ID of a user in order to confirm that they are an adult, per Click2Houston. Porn industry giant PornHub, has argued that adults should not have to disclose their ID and personal information to watch pornography. So the adult content companies, under the name "Free Speech Coalition"—a group of porn industry representatives who push to allow the distribution of their content—filed an injunction in state courts, but lost.
On appeal, the porn group filed to the Supreme Court, and their lawsuit claims that the state of Texas violates their free speech.
The question presented to the Supreme Court surrounded the Fifth Circuit’s decision to apply "rational-basis review—rather than strict scrutiny—to vacate a preliminary injunction of a provision of a Texas law" that required the age verification.
The porn companies claimed that the lower courts were in error in applying rational-basis review instead of strict scrutiny, two different legal standards.
Rational-basis review is an easier legal test for a law to be upheld by the government in the case of a legal challenge, whereas strict scrutiny is a test where a law is upheld when it is "necessary to achieve a compelling government purpose,” and is a stricter standard.
The high court heard the arguments from the “free speech” group in January, where the porn group’s lawyer argued that requiring identification to view porn chills speech and the "court should begin by confirming that strict scrutiny continues to apply to any such content-based burden on websites and their adult users."
He also argued, “You’re creating a permanent record on the Internet when you provide this information. It is a target for hackers,” and that providing an ID—as one does with many other online services—places an “undue burden” on adults wanting to watch porn.
The majority opinion, written by Justice Clarence Thomas, stated, "Texas, like many States, prohibits the distribution of sexually explicit content to children. Tex. Penal Code Ann. §43.24(b) (West 2016). But, although that prohibition may be effective against brick-and-mortar stores, it has proved challenging to enforce against online content. In an effort to address this problem, Texas enacted H. B. 1181, Tex. Civ. Prac. & Rem. Code Ann. §129B.001 et seq. (West Cum. Supp. 2024), which requires certain commercial websites that publish sexually explicit content to verify the ages of their visitors. This requirement furthers the lawful end of preventing children from accessing sexually explicit content. But, it also burdens adult visitors of these websites, who all agree have a First Amendment right to access at least some of the content that the websites publish. We granted certiorari to decide whether these burdens likely render H. B. 1181 unconstitutional under the Free Speech Clause of the First Amendment. We hold that they do not."
"The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content. H.B. 1181 is a constitutionally permissible exercise of that authority," Thomas added.
In 2023, Texas lawmakers passed HB 1181, which required that all pornographic sites check the ID of a user in order to confirm that they are an adult, per Click2Houston. Porn industry giant PornHub, has argued that adults should not have to disclose their ID and personal information to watch pornography. So the adult content companies, under the name "Free Speech Coalition"—a group of porn industry representatives who push to allow the distribution of their content—filed an injunction in state courts, but lost.
On appeal, the porn group filed to the Supreme Court, and their lawsuit claims that the state of Texas violates their free speech.
The question presented to the Supreme Court surrounded the Fifth Circuit’s decision to apply "rational-basis review—rather than strict scrutiny—to vacate a preliminary injunction of a provision of a Texas law" that required the age verification.
The porn companies claimed that the lower courts were in error in applying rational-basis review instead of strict scrutiny, two different legal standards.
Rational-basis review is an easier legal test for a law to be upheld by the government in the case of a legal challenge, whereas strict scrutiny is a test where a law is upheld when it is "necessary to achieve a compelling government purpose,” and is a stricter standard.
The high court heard the arguments from the “free speech” group in January, where the porn group’s lawyer argued that requiring identification to view porn chills speech and the "court should begin by confirming that strict scrutiny continues to apply to any such content-based burden on websites and their adult users."
He also argued, “You’re creating a permanent record on the Internet when you provide this information. It is a target for hackers,” and that providing an ID—as one does with many other online services—places an “undue burden” on adults wanting to watch porn.
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