SCOTUS Rules 6-3 to Uphold Texas Age-Verification Law for Porn-Site Access

Some legal experts said the decision could be helpful to other states that enacted age-verification laws and possibly encourage more legislators to consider such bills. However, an official from NetChoice, the tech industry group behind challenges to age-verification laws in several states, said it's still confident about winning its cases.

Age-verification laws like HB-1181, which require proof that a user is at least 18, "fall within States’ authority to shield children from sexually explicit content," said Justice Clarence Thomas, writing for the majority in the Texas case. "The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective."

"That power necessarily includes the power to require proof of age before an individual can access such speech," Thomas continued. "It follows that no person -- adult or child -- has a First Amendment right to access speech that is obscene to minors without first submitting proof of age."

Chief Justice John Roberts and Justices Neil Gorsuch, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett joined Thomas in the majority opinion. Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor dissented. SCOTUS heard oral argument in case 23-50627 on Jan. 15 (see 2501150073).

Kagan's dissent touched on the legal question of the case: whether the 5th U.S. Circuit Court of Appeals erred when it applied intermediate scrutiny to the law instead of strict scrutiny, which applies when laws restrict basic rights or discriminate against certain groups.

“Over the years, we have recited the governing rule almost like a mantra: If a law burdens protected speech based on what that speech says or depicts -- as H. B. 1181 does -- the law has to clear the strict-scrutiny bar,” Kagan said. “Applying strict scrutiny in this context, however, need not be a death sentence. To the contrary, a State exercising care should be able to devise a regulatory means of achieving its objective consistent with the First Amendment.”

States "may not care much about safeguarding adults’ access to sexually explicit speech" and "may even prefer to curtail those materials for everyone," as "many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience," she continued. "But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children."

Texas, South Carolina AGs Applaud

In a press release, Paxton called the decision "a major victory for children, parents, and the ability of states to protect minors from the damaging effects of online pornography. Companies have no right to expose children to pornography and must institute reasonable age verification measures.”

South Carolina Attorney General Alan Wilson (R) also applauded the court's decision as a regulatory victory. In an emailed news release, he said the ruling is "a powerful step toward bringing order to the Wild West of the digital age,” adding that it "affirms that we don’t have to stand by while Big Tech turns a blind eye; we can take action."

The Age Verification Providers Association said the decision “accept[s] that modern age assurance technology is effective, proportionate and privacy-preserving.”

“We expect this judgment to accelerate the adoption of age verification laws across the remaining 26 US states and globally,” Executive Director Iain Corby said in a statement.

The American Civil Liberties Union, representing the Free Speech Coalition in the case, condemned the court's overreach. “The Supreme Court has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials,” said Cecillia Wang, ACLU's national legal director, in a release. “The legislature claims to be protecting children from sexually explicit materials, but the law will do little to block their access, and instead deters adults from viewing vast amounts of First Amendment-protected content.”

“Today's decision does not mean that age verification can be lawfully imposed across the internet,” added Vera Eidelman, a senior staff attorney with the ACLU Speech, Privacy and Technology Project. “With this decision, the court has carved out an unprincipled pornography exception to the First Amendment.”

Think tank TechFreedom slammed the majority for "saving a badly crafted statute." Corbin Barthold, its director of appellate litigation, added, "Rather than sending Texas back to the drawing board -- forcing it to write a law that is narrowly tailored to protecting minors -- the Court simply lowers the standard of scrutiny. It goes out of its way to let Texas age-gate adult content, and it opens the door to more Internet age-gating to come. This is result-oriented jurisprudence at its worst.”

Effect on State Laws, Litigation

Social media age-verification laws have been preliminarily enjoined in states including Georgia (see 2506260054), Arkansas (see 2504010044) and Mississippi (see 2506180051) as the result of NetChoice's lawsuits alleging First Amendment and privacy concerns. But other suits brought by the trade association have been less successful, such as in Tennessee, where a federal court recently declined to block an age-verification law (see 2506200017).

NetChoice Director of Litigation Chris Marchese differentiated between this decision and the group's litigation challenging state age-verification laws. In a statement emailed to us, he said SCOTUS in this case upheld ID checks for porn sites, "which disseminate content already unlawful for minors.” However, NetChoice’s lawsuits deal with issues of "protecting access to speech that is lawful for all Americans -- including political speech, news, and educational content. NetChoice is confident that we will continue to win.”

In an email, Privacy Law Scholars Conference Chair Ari Waldman told us that the decision could pave the way for additional restrictive laws “behind a shield of protecting kids.”

“Once again, the conservative supermajority on the Supreme Court has decided to disingenuously weaponize society’s concerns for children to restrict the right of some adults to access information the court’s conservatives simply don’t like,” said Waldman, a law professor at the University of California-Irvine. “This time it’s pornography. … It will now be a lot easier for any ‘parental rights’ law to impose some conservative parents’ will on others, and it will supercharge parental control as yet again the go-to policy choice for youth privacy.”

The Supreme Court "took a wrecking ball" to internet law with the Paxton ruling, said Eric Goldman, co-director of Santa Clara University's High Tech Law Institute, in a blog post. "The majority (disingenuously) overturned two critical decades-old precedents restricting online age authentication (both of which Justice Thomas had supported at the time)."

"Online publishers will have fewer effective countermoves against the tsunami of other online age-authentication mandates that have been or will be enacted across the country," added Goldman. "After this opinion, online publishers can still fight any laws that don’t target pornography, but this opinion will likely make those challenges harder to succeed (and will certainly multiply legislative adoptions)."

Hogan Lovells tech policy attorney Mark Brennan said in an emailed statement that the ruling "left open many unanswered questions for the wave of age-verification and age-assurance laws being passed." It "continues the Court’s trend of adding further complexity to federal and state tech legislation and creating more questions than answers.”

"I'm surprised the Court was so dismissive of the privacy concerns from online data breaches," he continued. "An analogous concern over video-tape-rental leaks drove Congress to pass the [Video Privacy Protection Act] decades ago. Perhaps we learned today that some viewing habits have changed."

Amelia Vance, Public Interest Privacy Center president, said in an email that there's a difference between the Texas law, which SCOTUS stressed was “narrow" and "aimed at content that is obscene to minors, a traditionally unprotected category of speech,” and measures for kids online safety in other states that face legal challenges. The latter “are much broader, regulating how platforms design their services, collect data, and/or moderate content,” she said.

The SCOTUS decision "does not settle everything,” Vance added. “It draws a clear line around obscenity, but broader child privacy laws focused on data and content moderation remain unsettled.” Still, the Paxton ruling “may strengthen state efforts to mandate age-appropriate design, as this case sets precedent for upholding laws that only incidentally impact adult access to protected speech online as long as they serve an important interest (such as protecting children online) and avoid sweeping bans (or criminalization of platforms that fail to keep certain harmful content from minors).”

The court’s finding “that adults have no First Amendment right to avoid age verification … may have major impacts for how we all experience the internet, potentially bringing an end to anonymous browsing," Vance added. She also noted that the court "categorized the burden on adults as ‘incidental’ while not providing any meaningful discussion of the privacy concerns and chilling effects associated with age verification online."