Andrew Chang
(Reuters) – The U.S. Supreme Court declined on Tuesday to block a Texas law requiring online age verification to access pornographic websites, in a case pitting the Republican-led state’s efforts to protect adult content from minors against constitutional protections of free speech.
Without any publicly expressed disagreement, the justices rejected a request from a trade group representing adult entertainment performers and other challengers to the law to stay a lower court ruling that the measure likely did not violate the First Amendment’s guarantee against government interference in Freedom of speech.
The 2023 law would require all websites that contain more than a third of “sexually explicit material harmful to minors” to require all users, including adults, to provide personal information proving they are over 18 to gain access. Several other states have passed similar laws.
Opponents of the Texas law, represented by the American Civil Liberties Union and others, said it creates security and privacy concerns by exposing users to possible identity theft, tracking and extortion. They also said its effectiveness was undermined because it would not restrict social networks or search engines where pornography thrives.
In any case, the challengers added, content-filtering software does a better job of protecting minors than similar laws.
The plaintiffs argue that the case is straightforward given the Supreme Court’s own precedents, which hold that obscene sexual content is constitutionally protected. These precedents allow governments to restrict minors’ access to sexually explicit material, but under the First Amendment they cannot burden adults’ access to such content.
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Texas said its law was needed because smartphones have made it much easier for children to have instant access to “virtually unlimited” hardcore pornographic content.
The law, Texas said in a statement, “simply requires the porn industry, which (earns) billions of dollars from the smut trade, to take commercially reasonable measures to ensure that those accessing the materials are adults.”
The plaintiffs include the Free Speech Coalition, a trade association for performers, producers and distributors of adult content, and companies that operate several pornography sites, including Pornhub.com and xnxx.com.
Senior U.S. District Judge David Alan Ezra issued a preliminary injunction in Austin blocking the law the day before it took effect. Ezra noted that “constitutionally protected speech will be limited” and could extend to non-pornographic sites that host R-rated movies or sex education materials for high school students.
The 5th U.S. Circuit Court of Appeals in New Orleans allowed the law to apply while the case was pending, and in March ruled that the plaintiffs were unlikely to succeed in challenging the age verification requirement under the First Amendment, overturning Ezra’s injunction against that provision.
The Fifth Circuit upheld the judge’s injunction against a separate provision of the law requiring websites to display “health warnings” about the consequences of viewing pornography.