The Supreme Court announced it scheduled oral arguments for Jan. 15, 2025, in a case challenging a Texas law mandating age verification for users of pornography websites.
The announcement in the case known as Free Speech Coalition Inc. v. Paxton was made on Oct. 31.
The respondent, Ken Paxton, is the attorney general of Texas.
In August 2023, a federal district court temporarily blocked the age verification requirement, as well as a requirement that the websites post health hazard warnings about pornography use.
The U.S. Court of Appeals for the Fifth Circuit took up the case, upholding the law’s health hazard mandate but overturning the lower court’s injunction against the verification provision in March of this year.
The coalition argues that the Fifth Circuit erred when it held that the law needed only a “rational basis” instead of “heightened scrutiny” to pass constitutional muster. The two phrases refer to standards that courts use when reviewing limits on speech.
In the petition filed April 12, the coalition urged the Supreme Court to take up the case.
The court has held that if a law enacted to protect minors from sexually explicit content “also burdens adults’ access to constitutionally protected speech, the law can ‘withstand constitutional scrutiny’ only if it is ‘narrowly drawn ... to serve those interests without unnecessarily interfering with First Amendment freedoms.”
The online age verification procedure required by the state law makes users identify themselves by presenting government-issued identification and this creates a “‘substantial chilling effect’ by exposing adults to the ‘risk of inadvertent disclosures, leaks, or hacks,’” the petition states.
Users may be “more willing to pay to keep that information private” and that information may be “targeted by identity thieves and extortionists.”
The state law does not forbid external transmission of the adults’ information to the government and this may lead to concern among adults that governments are “monitoring ... what kind of websites they visit,” the complaint states.
The coalition does “not dispute that if they were brick-and-mortar bookstores or sidewalk magazine stands, Ginsberg v. New York would permit Texas to require them to check the age of their customers before selling them pornography,” Paxton said.
In Ginsberg, the Supreme Court ruled in 1968 that even if material is not deemed obscene its marketing may still be regulated because it may be harmful to children.
But the coalition argues that because its members’ business is conducted online “the First Amendment allows them to provide access to nearly inexhaustible amounts of obscenity to any child with a smartphone.”
The Supreme Court should not “rush to judgment” in the case and should allow the litigation to unfold at a normal pace in the lower courts, Paxton said.
