Washington On Wednesday, the Supreme Court will decide whether to overturn a Texas statute that forbids minors from accessing pornographic material on the internet.
A case brought by the Free expression Coalition, a group representing the pornography industry, claims that the 2023 law, which aims to limit children’ access to sexual material, infringes upon the right to free expression of adults who choose to see the same content.
The law mandates that pornographic websites check the ages of all users, typically by looking at official documents like driver’s licenses.
The opponents, with the help of the American Civil Liberties Union, claim that the statute restricts adults’ freedom of speech in a content-based manner, which is a violation of the First Amendment of the Constitution.
They point to a 2004 Supreme Court decision that determined the Child Online Protection Act, a federal statute that likewise sought to limit access to pornography, was probably unconstitutional.
Whether the Texas legislation is subject to “strict scrutiny,” a kind of judicial review that calls on judges to determine whether a government action that violates free expression serves a compelling interest and was “narrowly tailored” to achieve that aim, is one of the issues before the justices.
In court documents, Republican Texas Attorney General Ken Paxton, who is defending the legislation, stated that it is no different from previous policies that require customers to present identification at physical adult businesses.
“Nevertheless, petitioners insist that because they have moved their business online, the First Amendment protects their right to distribute a nearly inexhaustible amount of obscenity to any child with a smartphone,” he stated.
Texas is partially relying on a 1968 Supreme Court decision that upheld states’ rights to bar minors from accessing anything that is considered detrimental to them.
A federal judge had determined that the relevant provision was problematic in the new case because it did more than just limit access to minors.
The 5th U.S. Circuit Court of Appeals, located in New Orleans, later decided in favor of Texas and declined to postpone its decision until it was further examined.
Concerned about the provisions taking effect, a number of online pornography firms, including Pornhub, blocked users from accessing their websites in Texas following the appeals court’s decision.
In April, the challengers filed an appeal after the Supreme Court refused to block the law.
Because it had not applied close scrutiny to the law, the Biden administration filed a brief asking the court to return the case to the court of appeals. According to Solicitor General Elizabeth Prelogar, an age verification requirement could be implemented even under that threshold.
The Supreme Court, according to her, “should make clear that the First Amendment does not prohibit Congress and the states from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet.”