Washington The justices of the Supreme Court on Wednesday argued in favor of government action on the matter as they considered a challenge to a Texas statute that forbids minors from accessing pornographic material online.
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.
Several justices voiced concerns during oral arguments over how youngsters can now more easily access pornography thanks to technological advancements like smartphones. They proposed that this could imply that current Supreme Court rulings on restrictions on children’s freedom of speech may not be accurate.
Justice Clarence Thomas remarked, “We’re in an entirely different world,”
“Technological access to pornography, obviously, has exploded,” Chief Justice John Roberts concurred.
With school-age children of her own, Justice Amy Coney Barrett questioned the effectiveness of content filters and other alternative efforts to keep children from accessing adult materials.
“I can say from personal experience, it’s difficult to keep up,” she stated.
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.
During their lengthy discussion of the matter, some justices argued that age-verification regulations should be upheld under a less stringent standard rather than being closely examined.
However, since the 5th U.S. Circuit Court of Appeals did not adopt that stance in its decision in favor of the state, the court would probably return the issue to lower courts for additional consideration if it determines that strict scrutiny should be used.
It appears likely that the statute would be in force while any challenge is ongoing, regardless of the court’s decision.
Even if the higher threshold is used, it is still feasible that the Texas statute will be upheld.
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.
In a brief, the Biden administration urged the court to return the case to the court of appeals for a rigorous analysis of the law. According to Solicitor General Elizabeth Prelogar, an age verification requirement could be implemented even under that threshold.