It was unclear who came out on top during oral arguments before the Supreme Court on Thursday over a Texas law that would require porn websites to technologically block minors from accessing their pages.
Under the law, HB 1181, passed in 2023, if at least a third of a website’s content is “sexual material harmful to minors” the owner would be required to restrict access to it with age-verification technology. What form that age verification could take remains open to interpretation.
The court’s conservative justices seemed friendly to the argument that states need stronger tools to prevent minors from viewing porn given the ease with which it can be accessed on mobile phones and other devices. But, along with the court’s three liberal justices, they questioned Texas’s solicitor general, Aaron Nielsen, on whether the state’s law should be subjected to, and could survive, the strict scrutiny standard of review that the court has previously laid down for analyzing laws that may restrict protected forms of speech.
The porn industry, represented by the Free Speech Coalition trade association, had challenged the law and won a preliminary injunction from a federal district court. But the 5th Circuit Court of Appeals overturned that ruling, based on a standard known as rational basis review, which requires a party challenging a law to prove that the government has no legitimate interest in enacting the rules or that there is no reasonable link between the rules and the government’s legitimate interest.
Before the Supreme Court on Thursday, Derek Shaffer, the attorney representing the Free Speech Coalition, argued that the appeals court erred and instead should have subjected the law to the strict scrutiny standard, which would have placed the burden on Texas to prove that HB 1181 was not only in pursuit of a compelling state interest but that it was also narrowly tailored and not unduly burdensome for adults.
While states do have a compelling interest in restricting minors’ access to pornography, Texas’s age-verification requirement would have failed the strict scrutiny test, Shaffer argued, because the age-verification requirements created a large burden for adults by requiring them to create a permanent, digital record of their visits to porn sites, which could be hacked or otherwise made public. Furthermore, he argued, Texas failed to consider other technological solutions, like content filtering tools for minors’ devices, that wouldn’t have placed a burden on adult viewers.
Nielsen, representing Texas, claimed that porn websites could use biometric identifiers like hand prints or facial recognition without raising privacy concerns or unduly burdening adults. “Age verification today is simple, safe, and common, including non-identifying means,” he said.
In their questioning, the justices didn’t delve into the efficacy or privacy implications of various age-verification technologies. Their review was focused mainly on how to interpret the court’s decades-old precedent on when to apply strict scrutiny given the significant change the internet has undergone since the most recent of those cases were decided.
“For us to apply anything less [than strict scrutiny] would be to overturn at least five precedents,” Justice Elena Kagan said at one point.