Supreme Court hears arguments on First Amendment challenge to age verification for porn sites – CNN
• About this case: The Supreme Court heard a challenge from PornHub and other sites to the Texas law that requires age verification — via government-issued ID or face scan — for certain websites, including porn sites. Texas says it’s attempting to limit harm to minors, while the porn industry argues the law violates the First Amendment.
• What the justices are deciding: On its face, the court isn’t being asked to judge if something is obscene. The question is on strict scrutiny vs. rational basis. The industry wants the “strict scrutiny” standard to apply — meaning government restrictions on speech must be both backed by a compelling government interest and narrowly tailored.
A ruling is expected by this summer, but the court seemed open to a way to require age verification even if it doesn’t immediately resolve the First Amendment questions.
The Supreme Court appeared to signal Wednesday that Texas may be permitted to require some form of age verification for porn sites, but left open the possibility that the deeper First Amendment questions raised by the case may not be immediately resolved.
During two hours of oral argument, the court’s conservatives appeared to be aligned on the idea that states should be able to impose some kind of requirement to ensure that minors don’t access obscene material online, but there was also concern about any ruling potentially spilling over and affecting other First Amendment rights.
It seemed likely that the Supreme Court would hand the case back to a lower court to resolve at least some of those questions. Both the 5th US Circuit Court of Appeals – and the Supreme Court itself, on an emergency basis – allowed the law to take effect last year.
The Supreme Court was asked specifically what level of judicial scrutiny might apply to the law – a question that could decide the law’s fate. The 5th Circuit ruled that states should have considerable leeway to impose such laws – even if they affect the ability of adults to access protected speech – and the entertainment industry, in its appeal, argued that a higher level of scrutiny should apply.
Normally, a high level of judicial scrutiny kills laws that burden speech under the First Amendment. But in this case, some justices seemed to believe that Texas’ law could survive even if the higher level of review is applied.
The court wrapped up its arguments a little more than two hours after they started, with the lawyer for the porn industry making a plea that the justices consider the supposed flaws in Texas’ approach and that they recognize the high court’s role in making the internet a “free medium of expression.”
The lawyer, Derek Shaffer, brought up the law’s scant privacy protections for adult users of the covered websites and the “hostile” approach of regulators in how the law also sought to scold adults who consumed the content.
“The tradition on the internet is to say that it will be free and that it is incumbent upon parents to screen out content that is inappropriate for their kids,” he said.
Justice Clarence Thomas appeared to push back on the idea that a 1968 Supreme Court decision about selling pornography in stores should control a case involving the internet, where sites have millions of users and billions of page views.
Just how much credence to give the 1968 case, Ginsberg v. New York, has been a central theme of the arguments today.
In that case, the Supreme Court applied a lower level of judicial scrutiny and let stand a law requiring magazine sellers to verify age of potential purchasers.
“Ginsberg sounds simple, but in the tech cases we’ve had recently, we’re talking about hundreds of millions of members to certain sites – billions of visits,” Thomas said. “How much of a burden is permissible on adults’ First Amendment rights?”
Justice Elena Kagan at one pointed pressed a Biden administration attorney on the possible “spillover dangers” that could arise depending on how the court rules.
The liberal justice appeared to be suggesting that a broad ruling in the case – regardless of which side the court falls on – could have a major impact on a host of other government restrictions on speech.
“It seems to me that there are possible spillover dangers either way. One is the spillover danger of: You relax strict scrutiny in one place and all of a sudden strict scrutiny gets relaxed in other places. The other is the spillover danger of: You treat a clearly content-based law as not requiring strict scrutiny and all of a sudden you start seeing more content-based restrictions that don’t have to satisfy strict scrutiny,” she told Principal Deputy Solicitor General Brian Fletcher.
Fletcher, who is asking the court to rule in favor of the law’s challengers, said the justices could be clear in their ruling that the court’s “regular strict scrutiny standard just applies differently because of the special features here.”
The main question before the court is whether the Texas law should be subject to strict scrutiny, an extremely demanding level of judicial review under which most laws fall, or rational basis review, the lowest level of judicial review under which laws are typically upheld by courts.
Justice Clarence Thomas joined his conservative colleagues in emphasizing how technology has shifted since previous Supreme Court cases that protected access to pornography on First Amendment grounds.
Thomas pointed to a case, brought by Playboy Entertainment, that challenged a law requiring cable programmers to place limits on how and when sexually-oriented material was broadcast on television.
“You would admit, though, that we’re in an entirely different world,” he told a Justice Department attorney. “Playboy was about squiggly lines on cable TV.”
Aaron Nielson, who has served as Texas’ solicitor general since late 2023, is likely to lean heavily into the harm pornography can have on young people and the state’s interest in limiting that harm during arguments on Wednesday.
Nielson, a former clerk to conservative Justice Samuel Alito, will likely stress that that the law doesn’t directly prevent adults from accessing sexually explicit material and that states have a history of regulating access to smut.
Texas points to a 2021 study in the Journal of Sex Research to argue that early use of porn may trigger adolescent depression, headaches and trouble sleeping. They cite a 2022 study in the Archives of Sexual Behavior for the idea that teens who view porn are more likely to use illegal drugs, alcohol and tobacco.
Texas, the nation’s second-most-populous state and among its most conservative, is a frequently flier at the Supreme Court and Nielson has already made several arguments before the justices during his brief time in the job.
Nielson defended a Texas law that is intended to protect conservative viewpoints on social media. Industry groups challenged those laws on First Amendment grounds and the Supreme Court in July left them blocked while the litigation continues.
The Texas case is one of several major disputes currently before the Supreme Court that could significantly transform the lives of the nation’s teenagers. In this case, Texas argues its age verification law is intended to protect minors from porn.
“Pornography harms children,” Texas told the Supreme Court in a recent brief, claiming that children who repeatedly view explicit material can experience mental and physical repercussions.
The case is the latest before the Supreme Court with a tie to America’s youth. On Friday, the justices considered the constitutionality of a federal ban on the social media platform TikTok, which enjoys widespread popularity among young people. Last month, the conservative-majority court reviewed Tennessee’s controversial ban on gender-affirming care for trans youth.
The court is also weighing the Food and Drug Administration’s efforts to yank vaping products from shelves. Nineteen percent of high school students vaped in 2020, the FDA says, a far higher share than that of students who smoked.
The disputes are heating up as young people are especially disillusioned with Washington generally and the Supreme Court specifically. A Marquette Law School poll last month found the high court’s approval among Americans 18-29 stands at 44%, lower than any other age category.
“I don’t think we should be surprised that more and more cases are going to get to the court directly implicating young people when so many state and local lawmakers are legislating with morality and young people on their minds,” said Aaron Tang, a law professor at the University of California, Davis, who specializes in education law.
Though the Biden administration is not a named a party in the case, the Supreme Court has agreed to give it time during today’s hearing to make its arguments for why the law should be subject to the most demanding level of judicial review.
Those arguments will be made by Principal Deputy Solicitor General Brian Fletcher, a longtime Supreme Court advocate who has worked both in and out of government.
Fletcher is expected to ask the justices to rule that the appeals court was wrong when it said that the law should be subject to the lowest level of judicial review.
Instead, he’ll argue, the law should be subject to strict scrutiny.
But Fletcher’s arguments will not entirely mirror those from the law’s challengers. That’s because unlike the challengers, the Biden administration “takes no position on whether H.B. 1181, or any other specific existing or proposed law, satisfies strict scrutiny.” The Biden administration wants the Supreme Court to send the case back to a trial court for more review rather than strike it down outright.
Prior to joining the Biden administration in 2021, Fletcher worked as a professor at Stanford Law School and previously served in the Obama White House, according to a biography from the university. He also worked for a time in private practice in Washington, DC, according to the biography.
Chief Justice John Roberts, in a potentially telling moment, appeared to question how much fidelity the Supreme Court should give to precedents on pornography from the 1960s that protected that speech because the nature of the material has become more explicit.
It’s a theme several of the conservative justices have raised, comparing explicit videos on the internet to more benign images once published by Playboy.
“The nature of the pornography, I think, has also changed in those 35 years,” Roberts said. “And so, are those the sort of developments that suggest revisiting the standard of scrutiny … as opposed to keeping a structure that was accepted and established in an entirely different era?”
Derek Shaffer, representing the adult entertainment industry, quickly responded: “I respectfully urge you not to, Mr. Chief Justice.”
Justice Samuel Alito invoked the old joke about people reading Playboy for the articles, by asking the challengers’ lawyer whether one of his clients, Pornhub, offered essays for its visitors.
“What percentage of the material on that is not obscene?” the justice asked. “Is it like the old Playboy – you have essays on there by…. Gore Vidal and William F. Buckley Jr.?”
Part of the challengers’ argument is that the design of Texas’ law is burdening speech that is not obscene, since any website is covered by the law if more than one-third of its content could be considered sexually harmful to minors.
Justice Sonia Sotomayor, a member of the court’s liberal wing, is the first to offer a lifeline to the lawyer representing the adult entertainment industry, who has faced a series of tough questions from the rest of the bench.
Sotomayor noted that the court has repeatedly applied the highest level of legal scrutiny when deciding similar cases. If the court did so in this case, it would almost certainly lead to the Texas age-verification law being invalidated.
“We have at least five precedents that have answered that question directly,” Sotomayor stressed. “For us to apply anything else would be overturning at least five precedents.”
At the Supreme Court, the case largely turns on one technical question: Under which standard of judicial review should courts examine the Texas law?
The unsexy legal question is of critical importance to both sides. The justices could decide that the law is subject to strict scrutiny, as its challengers argue, which would all but ensure its defeat.
Or, the majority could say that the age-verification requirement is subject to a rational-basis review, a much less demanding test under which laws are generally much more likely to be upheld.
The federal judge in Texas who initially blocked the law did so by applying strict scrutiny, the highest level of judicial review that requires government restrictions on speech to be both backed by a compelling government interest and narrowly tailored to further that interest.
But a divided appeals court panel in New Orleans wiped away that block, deciding that the law should instead be analyzed under the rational-basis test, which requires there to be only a legitimate state interest in government regulation of speech. Laws reviewed under this test almost always survive.
Once the high court decides which level of review applies here, its easiest route would be to send the case back to a trial court to apply the standard to the facts of the case. But it could also go a step further by applying the standard itself, a move that would help speed up the litigation process.
Conservative Justice Amy Coney Barrett suggested early on that she didn’t think the adult entertainment industry’s proposed solution to the issue of minors accessing pornography online was sufficient enough, given the many ways such content can be accessed.
“Kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.”
Justice Amy Coney Barrett
She continued: “And I think that the explosion of addiction to online porn has shown that content filtering isn’t working.”
Several conservative members of the Supreme Court are leaning into a key argument from the adult entertainment industry, questioning its answer for how to keep pornography away from children if not age-verification.
Justices Amy Coney Barrett, Samuel Alito and Brett Kavanaugh have all questioned whether filtering content at home has really worked.
“Do you know a lot of parents who are more tech savvy than their 15-year-old children?” Alito asked the lawyer representing the adult entertainment industry. “C’mon. Be real.”
The questions are important because part of the legal calculation the court may need to address is whether the Texas law was an appropriate response to its interest in protecting minors.
Justice Clarence Thomas posed the first question in oral arguments – as he almost always does – asking whether age-verification can ever be constitutional.
The conservative justice appeared to be signaling concern with the adult industry’s position – or least testing its boundaries.
Derek Shaffer, the attorney for the industry, was eager to avoid that question – telling the justices that they don’t need to address it to resolve the case.
The First Amendment fight over Texas’ age-verification law isn’t principally about whether children should be able to access pornography. The adult entertainment industry that filed the challenge agrees that states have an interest in preventing that.
The question is: What happens when a law aimed at children winds up limiting adults’ access to protected content? The industry group argues that the Texas law chills the ability of adults to access pornography online because it requires them to submit identifying information.
A “substantial chilling effect” is created by requiring proof of individual identity online, the industry told the Supreme Court.
“Adults who submit, for example, a ‘government ID’ over the Internet to ‘affirmatively identify themselves’ understand that they are thereby exposing themselves to ‘inadvertent disclosures, leaks, or hacks.’”
Adult film industry filing with the Supreme Court
Texas has questioned how significant a burden age-verification really is and the state argues that it has an interest in – and power to – regulate what minors see online.
Arguments over a First Amendment challenge to a Texas law that requires age verification on porn sites is underway at the Supreme Court.
The court has scheduled just over an hour for the session, though it’s very likely the justices will spend more time on this case than that. Texas says its law is intended to ensure that minors aren’t able to gain access to porn.
First up is Derek Shaffer, an attorney representing the adult entertainment industry, which has challenged the law on the theory that it chills the ability of adults to access protected speech.
Derek Shaffer, who is arguing on behalf of the adult entertainment industry, won another major First Amendment case at the Supreme Court just four years ago.
The Stanford law graduate got six conservative justices to agree in 2021 that a California law requiring charitable organizations to disclose the names of contributors violated the First Amendment. In that case, Shaffer represented the conservative non-profit American for Prosperity Foundation (a Koch-affiliated group).
Shaffer, an attorney with the Quinn Emanuel Urquhart & Sullivan law firm, will argue Wednesday that the justices should block a Texas law that requires age verification for porn sites because, he will say, it violates the First Amendment.
The challenge of Texas’ age-verification law for pornographic websites turns on two Supreme Court precedents, one from 1968 and the other from the early years of the internet.
The adult film industry is relying on a 2004 decision dealing with a federal law, the Child Online Protection Act, that attempted to criminalize content on the “World Wide Web” that was harmful to minors. In that case, the Supreme Court said that the highest level of legal scrutiny should apply to the law, effectively killing it.
That 5-4 case, the porn industry argues, should settle the matter in their favor.
Notably, the only current member of the Supreme Court who was also on the court in 2004 is Justice Clarence Thomas. The conservative justice was in the majority.
Texas is pointing to another precedent: A 1968 decision in which the Supreme Court let stand a New York law that prohibited the sale of pornographic magazines to underage customers.
Those principles have not changed, Texas argues, “just because obscenity has moved online.”
The Supreme Court has, for decades, been unwilling to expand areas of speech that are not protected by the First Amendment.
It has struggled to define one of those areas – obscenity – for nearly as long.
“I know it when I see it,” Justice Potter Stewart famously wrote in a 1964 concurrence in case involving a theater in Ohio that wanted to screen the 1958 film, Les Amants.
In 1973, the court defined obscenity as material that depicts sexual content that is “patently offensive” in a way that “appeals to the prurient interest,” and, taken as a whole, “lacks serious literary, artistic, political, or scientific value.”
But the court has also been clear that sexually explicit material is not, on its own, obscene.
The Texas law attempts to adapt the standard for minors, applying age-verification requirements to websites on which “more than one-third” of the content is “sexual material harmful to minors.”
To define “sexual material harmful to minors,” the state relied on a similar definition that Congress used when it enacted the Child Online Protection Act in 1998.
It boils down to a finding that the “average person,” applying “contemporary community standards” would with respect to minors “appeal to or pander to the prurient interest” in a manner “patently offensive with respect to minors.”
The 1998 law was ultimately blocked by courts.
Texas is not the only state with an age-verification law for porn sites.
Over the last two and a half years, 19 states – home to more than a third of Americans – have passed laws that require pornography websites to confirm a user’s age by checking a government-issued ID or scanning their face, among other methods.
The new laws, which have been pushed by allies of President-elect Donald Trump, have led some of the largest adult sites, including Pornhub, to block users from specific states, rather than paying millions for ID-checking services.
The explosion of new laws in recent years has been pushed by groups associated with Project 2025, a controversial conservative policy blueprint written in anticipation of Trump’s second term.
Project 2025’s more than 900-page policy memo declares that “pornography should be outlawed,” argues that “the people who produce and distribute it should be imprisoned” and says companies that “facilitate its spread should be shuttered.”
Texas Gov. Greg Abbott, a Republican, signed the Texas age verification law for porn sites in 2023, one of series of similar laws that states have enacted across the country.
The measure, HB 1181, requires companies that publish websites on which more than one-third of the content is sexual material that is harmful to minors to use “reasonable age verification methods” to ensure users are at least 18 years old.
The law authorizes civil penalties up to $10,000 per violation and it authorizes a fine up of to $250,000 if the lack of age-verification results in a minor actually accessing sexual material.
Critics of the law note that it exempts search engines and social media platforms where pornography is regularly shared.
The First Amendment will once again take center stage at the Supreme Court on Wednesday as the justices hear oral arguments in a challenge to a Texas law that requires age verification for porn sites.
Free Speech Coalition, a trade association for the adult entertainment industry, argues that the law tramples over First Amendment rights by chilling the ability of adults to access sexually explicit material. The law, the group argues, includes no protections to ensure that adults aren’t outed in the verification process.
The real goal of the law, asserted Mike Stabile, a spokesperson for the Free Speech Coalition, is to put the porn industry out of business.
“Porn is the canary in the coal mine of free speech,” Stabile said.
Texas, which enacted the law in 2023, counters that is has an interest in protecting minors from accessing online smut. And, the state says, adults can use third-party age verification sites to limit the risk of exposing their private online activities.
“No one has a constitutional right to view ‘teen bondage gangbang’ videos, much less hundreds of thousands of them,” Texas said in a brief last year.
The case is on appeal from the New Orleans-based 5th US Circuit Court of Appeals, which sided with the state on age verification and overruled a federal district court order that blocked implementation of the law. The Supreme Court, in April, allowed the state to temporary enforce the law while the appeal was considered. There were no noted dissents.
It is the second major First Amendment case to be argued at the Supreme Court this month. On Friday, the court heard a challenge to the federal government’s ban on TikTok.
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