WASHINGTON — The Supreme Court on Wednesday grappled with a challenge to a Texas law aimed at preventing young people from accessing pornographic content online, with justices expressing support in principle for government action on the issue.
The 2023 law is aimed at restricting minors’ access to sexual material, but a challenge led by a pornography industry group called the Free Speech Coalition says it violates the free speech rights of adults who want to access the same content.
During oral arguments, several justices raised concerns about how technological advances, including the rise of smartphones, have made it easier than ever for children to access pornography. That could mean existing Supreme Court precedent on free speech restrictions affecting children might not be on point, they suggested.
"We're in an entirely different world," Justice Clarence Thomas said.
"Technological access to pornography, obviously, has exploded," Chief Justice John Roberts agreed.
Justice Amy Coney Barrett, who has school-age children, cited her own life in questioning the value of alternative measures to prevent minors' accessing adult material, such as content filters.
"I can say from personal experience, it's difficult to keep up," she said.
The measure requires adult websites to verify the ages of all users, usually by viewing government-issued identification, such as driver's licenses.
Assisted by the American Civil Liberties Union, the challengers say the law violates the Constitution’s First Amendment because it places a “content-based burden” on adults' access to speech.
They cite a 2004 Supreme Court ruling that found a federal law also aimed at restricting access to pornography, called the Child Online Protection Act, was most likely unconstitutional.
Among the issues before the justices is whether the Texas law is subject to "strict scrutiny," a mode of judicial review that requires judges to analyze whether a government action that infringes on free speech serves a compelling interest and was "narrowly tailored" to meet that goal.
The justices discussed that issue at length, with some suggesting that age-verification laws should not be subject to strict scrutiny but that they could instead be upheld under a lower standard.
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But if the court finds that strict scrutiny should apply, it would most likely send the case back to lower courts for further review because the 5th U.S. Circuit Court of Appeals, in ruling for the state, did not take that approach.
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Whatever the court does, it seems likely the law would remain in effect while any litigation continues.
It is also possible the Texas law could be upheld even if the stricter standard is applied.
Texas is relying in part on Supreme Court precedent — a 1968 ruling that endorsed the authority of states to prevent minors from accessing material deemed harmful to them.
In the new case, a federal judge had ruled that the provision at issue was problematic because it did not merely restrict access to minors.
The New Orleans-based 5th U.S. Circuit Court of Appeals subsequently ruled for Texas and refused to put its ruling on hold pending further review.
After the appeals court ruling, several online pornography platforms, including Pornhub, prevented people in Texas from accessing their sites out of concern about the provision’s going into effect.
The Supreme Court in April declined to block the law while the challengers appealed.
The Biden administration filed a brief urging the court to send the case back to the court of appeals so the law can be analyzed using strict scrutiny. Solicitor General Elizabeth Prelogar wrote that even under that standard, it would be possible to enact an age verification requirement.
