Adult industry trade group asks Supreme Court to strike down Texas age-verification law on websites

Pornography is among the issues the Supreme Court will consider in the new term that begins next month, including whether a Texas law’s age-verification requirement for accessing online sexual content violates the First Amendment.

The 2023 law imposes requirements on any commercial website that contains more than one-third of its content “sexual material harmful to minors.” The issue on appeal is not so much whether protecting children is laudable, but whether, in pursuing that stated goal, the Texas law improperly restricts adults.

The challengers, including an adult film industry trade group, argued to the justices in a brief filed this week that the age verification requirement “is unconstitutional under a straightforward application of First Amendment principles and precedents.” They say the law requires adults “to incur serious privacy and security risks—which the law leaves largely unaddressed—before they can access constitutionally protected speech.”

Once the case, called Free Speech Coalition v. Paxton, is argued in the new legislative session, a decision is expected by July.

The appeal was taken to the U.S. Court of Appeals for the 5th Circuit, where a divided three-judge panel upheld the age verification requirement. In ruling that the First Amendment was not violated, the majority of the panel said the restriction “is rationally related to the government’s legitimate interest in preventing minors from accessing pornography.”

But the question before the Supreme Court is whether the 5th Circuit asked the right question to arrive at that answer. In other words, the legal question the justices agreed to review is: “Did the appeals court err as a matter of law by applying rational review, rather than strict scrutiny, to a law restricting adults’ access to free speech?”

The panel applied the less stringent “rational basis” test, which is easier for the government to pass. But the challengers say the Supreme Court’s precedent requires the stricter “strict scrutiny” test in this situation. Under that test, any restrictions must be narrowly tailored to advance a compelling government interest and use the least restrictive means to protect minors. The challengers say the law fails that test.

As we have seen recently in the last quarter, the Supreme Court has not hesitated to inform the 5th Circuit when the justices believe that the federal appeals court has overstepped its bounds. The challengers, represented by the American Civil Liberties Union, hope that this case will be one of the last examples of this phenomenon.

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