Supreme Court to Hear Arguments Over Texas Age Verification Requirement for Porn Sites

Screens displaying a minor child sign and the logo of the pornographic site Pornhub in Toulouse, France, on May 24, 2022. Lionel Bonaventure/AFP via Getty Images

The Supreme Court is hearing oral arguments on Jan. 15 over a Texas age verification requirement for porn sites and its implications for the First Amendment.

The case, known as Free Speech Coalition v. Paxton, came out of the U.S. Court of Appeals for the Fifth Circuit, which upheld the Texas law in March of 2024.

It comes amid a wave of age-verification laws passed across 19 states, as well as concerns that pornography use is creating a public health crisis.

“Minors viewing pornography has been associated with an increase in unhealthy sexual behavior, sexual aggression, mental illness, unstable relationships, and reduced family formation,” an amicus brief submitted in November from a group of social science scholars read.

The Fifth Circuit held that the age verification requirement was rationally related to the state’s interest in protecting minors from pornography. In doing so, it said the state had to meet a lower standard of review, known as rational basis, under the First Amendment.

Free Speech Coalition disagreed and told the Supreme Court that under current precedent, the law should be subjected to a higher level of review known as strict scrutiny, which requires the government to show that its law serves a compelling interest and does so through the least restrictive means.

The group and others have described the law as a violation of the First Amendment because it burdens adults’ access to a form of expression. According to the coalition, the requirement to submit personally identifying information as part of age verification “poses unique security and privacy concerns.”

In its petition to the Supreme Court, the coalition cited how a lower court said that Texas could have used content filters as a least restrictive way of protecting minors.

A federal judge in the Western District of Texas had imposed a block on the law while arguing that filters or parental controls were more effective for keeping porn away from minors and less burdensome to free speech. Judge David Ezra added that “age verification is only effective as far as the state’s jurisdiction can reach.”

“This is particularly troublesome for Texas because, based on the parties here alone, foreign websites constitute some of the largest online pornographic websites globally,” Ezra said.

In 2004, the Supreme Court upheld a block on a similar law known as the Child Online Protection Act. In that case, known as Ashcroft v. ACLU, the majority opinion said promoting the use of filters, Congress could help parents “without subjecting protected speech to severe penalties.” That case, the coalition said, should lead the court to rule against the Texas law.

Filters aren’t sufficient, however, for critics like Ethics and Public Policy Center (EPPC) fellow Brad Littlejohn who indicated on Jan. 14 that filters should be just one tool policymakers use to restrict minors’ access to porn.

“We should have content filters, sure, but we should also add the layer of age verification to the equation, because content filters [are] not getting the job done,” he said during a press conference at the National Center for Sexual Exploitation.

He and another EPPC fellow, Clare Morell, submitted an amicus brief telling the court that content filters carried loopholes that allowed minors to access porn. Littlejohn noted that minors could use archive.org as a way to view archived pornographic sites’ content and avoid detection by a filter.