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Adults have no First Amendment right to avoid age verification, 6–3 ruling says.
Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021, in Washington, DC. Credit: Getty Images | Drew Angerer
The Supreme Court today upheld a Texas law that requires age verification on porn sites, finding that the state's age-gating law doesn't violate the First Amendment.
The 6–3 decision delivered by Justice Clarence Thomas rejected an appeal by the Free Speech Coalition, an adult-industry lobby group. Pornhub disabled its website in Texas last year because of the state law.
The Supreme Court's conservative majority decided that the law should be reviewed under the standard of intermediate scrutiny "because it only incidentally burdens the protected speech of adults." The law "survives intermediate scrutiny because it 'advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests,'" the court said.
The majority said the law's burden on adults is incidental because adults have no First Amendment right to avoid age verification. "The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective," the ruling said. "That power includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access such speech without first submitting proof of age."
The court also said the law applying to online material isn't significantly different from older laws applying to non-digital access:
H. B. 1181 furthers Texas's important interest in shielding children from sexual content and is adequately tailored to that interest. States have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults' right to avail themselves of such material. H. B. 1181 simply adapts this traditional approach to the digital age. The specific verification methods that H. B. 1181 permits—government-issued identification and transactional data—are also plainly legitimate. Both are established methods of verifying age already in use by many pornographic websites and other industries with age-restricted services.
Kagan’s dissent
The majority rejected the argument that "other means of protecting children are more effective and that children are likely to encounter sexually explicit content on other websites subject to H. B. 1181's requirements." It said that "intermediate scrutiny does not require States to adopt the least restrictive means of pursuing their interests, or avoid all underinclusiveness."
Justice Elena Kagan filed a dissenting opinion that was joined by Sonia Sotomayor and Ketanji Brown Jackson. Kagan said that in similar cases, the court applied strict scrutiny, "a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content."
"Texas's law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so," Kagan wrote. "That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny."
The Texas law applies to websites in which more than one-third of the content "is sexual material harmful to minors." Kagan described the law's ID requirement as a deterrent to exercising one's First Amendment rights.
"It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to... who knows? The operator might sell the information; the operator might be hacked or subpoenaed," Kagan's dissent said. The law requires website users to verify their ages by submitting "a 'government-issued identification' like a driver's license or 'transactional data' associated with things like a job or mortgage," Kagan wrote.
Limiting no more speech than necessary
Under strict scrutiny, the court must ask whether the law is "the least restrictive means of achieving a compelling state interest," Kagan wrote. A state facing that standard must show it has limited no more adult speech than is necessary to achieve its goal.
"Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults' First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to)," Kagan wrote.
The majority decision said that applying strict scrutiny "would call into question all age-verification requirements, even longstanding in-person requirements." It also said the previous rulings cited in the dissent "all involved laws that banned both minors and adults from accessing speech that was at most obscene only to minors. The Court has never before considered whether the more modest burden of an age-verification requirement triggers strict scrutiny."
Kagan said this isn't true for three of the cases. For example, the United States v. Playboy Entertainment Group case involved a law that "did not ban adult cable channels, but instead limited their transmission to hours when children were unlikely to be in the audience," Kagan wrote.
Texas AG hails “major victory”
The Electronic Frontier Foundation called the Supreme Court decision "a direct blow to the free speech rights of adults." Aaron Mackey, the group's free speech and transparency litigation director, said the "ruling allows states to enact onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize their data security and privacy."
Mackey said the ruling leaves room to fight against age limits for non-sexual materials. "Importantly, the Court's reasoning applies only to age-verification rules for certain sexual material, and not to age limits in general. We will continue to fight against age restrictions on online access more broadly, such as on social media and specific online features," the group said.
Texas Attorney General Ken Paxton said the ruling is "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."
Paxton's press release said that companies violating the law "will be subject to fines of up to $10,000 per day, an additional $10,000 per day if the corporation illegally retains identifying information, and $250,000 if a child is exposed to pornographic content due to not properly verifying a user's age."
"I will continue to enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials," Paxton said.
Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021, in Washington, DC. Credit: Getty Images | Drew Angerer
The Supreme Court today upheld a Texas law that requires age verification on porn sites, finding that the state's age-gating law doesn't violate the First Amendment.
The 6–3 decision delivered by Justice Clarence Thomas rejected an appeal by the Free Speech Coalition, an adult-industry lobby group. Pornhub disabled its website in Texas last year because of the state law.
The Supreme Court's conservative majority decided that the law should be reviewed under the standard of intermediate scrutiny "because it only incidentally burdens the protected speech of adults." The law "survives intermediate scrutiny because it 'advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests,'" the court said.
The majority said the law's burden on adults is incidental because adults have no First Amendment right to avoid age verification. "The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective," the ruling said. "That power includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access such speech without first submitting proof of age."
The court also said the law applying to online material isn't significantly different from older laws applying to non-digital access:
H. B. 1181 furthers Texas's important interest in shielding children from sexual content and is adequately tailored to that interest. States have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults' right to avail themselves of such material. H. B. 1181 simply adapts this traditional approach to the digital age. The specific verification methods that H. B. 1181 permits—government-issued identification and transactional data—are also plainly legitimate. Both are established methods of verifying age already in use by many pornographic websites and other industries with age-restricted services.
The majority rejected the argument that "other means of protecting children are more effective and that children are likely to encounter sexually explicit content on other websites subject to H. B. 1181's requirements." It said that "intermediate scrutiny does not require States to adopt the least restrictive means of pursuing their interests, or avoid all underinclusiveness."
Justice Elena Kagan filed a dissenting opinion that was joined by Sonia Sotomayor and Ketanji Brown Jackson. Kagan said that in similar cases, the court applied strict scrutiny, "a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content."
"Texas's law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so," Kagan wrote. "That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny."
The Texas law applies to websites in which more than one-third of the content "is sexual material harmful to minors." Kagan described the law's ID requirement as a deterrent to exercising one's First Amendment rights.
"It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to... who knows? The operator might sell the information; the operator might be hacked or subpoenaed," Kagan's dissent said. The law requires website users to verify their ages by submitting "a 'government-issued identification' like a driver's license or 'transactional data' associated with things like a job or mortgage," Kagan wrote.
Limiting no more speech than necessary
Under strict scrutiny, the court must ask whether the law is "the least restrictive means of achieving a compelling state interest," Kagan wrote. A state facing that standard must show it has limited no more adult speech than is necessary to achieve its goal.
"Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults' First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to)," Kagan wrote.
The majority decision said that applying strict scrutiny "would call into question all age-verification requirements, even longstanding in-person requirements." It also said the previous rulings cited in the dissent "all involved laws that banned both minors and adults from accessing speech that was at most obscene only to minors. The Court has never before considered whether the more modest burden of an age-verification requirement triggers strict scrutiny."
Kagan said this isn't true for three of the cases. For example, the United States v. Playboy Entertainment Group case involved a law that "did not ban adult cable channels, but instead limited their transmission to hours when children were unlikely to be in the audience," Kagan wrote.
Texas AG hails “major victory”
The Electronic Frontier Foundation called the Supreme Court decision "a direct blow to the free speech rights of adults." Aaron Mackey, the group's free speech and transparency litigation director, said the "ruling allows states to enact onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize their data security and privacy."
Mackey said the ruling leaves room to fight against age limits for non-sexual materials. "Importantly, the Court's reasoning applies only to age-verification rules for certain sexual material, and not to age limits in general. We will continue to fight against age restrictions on online access more broadly, such as on social media and specific online features," the group said.
Texas Attorney General Ken Paxton said the ruling is "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."
Paxton's press release said that companies violating the law "will be subject to fines of up to $10,000 per day, an additional $10,000 per day if the corporation illegally retains identifying information, and $250,000 if a child is exposed to pornographic content due to not properly verifying a user's age."
"I will continue to enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials," Paxton said.
