The U.S. Supreme Court upheld a Texas law that could have broad implications for freedom of speech online. The court ruled 6-3 on Texas Law HB 1181 that requires the hosting of adult content to implement age verification sites.
The nonprofit Free Speech Alliance applied to top courts for review of the law in April 2024. (The organization represents the adult industry.) Texas is one of many years of verification laws targeting porn sites. Pornhub has withdrawn from 17 states due to similar legislation.
Critics across the political field point to HB 1181 on the impact on the First Amendment and online privacy. EFF points out that there is no age verification method that is both accurate and respects user privacy. (Unlike flashing IDs in person, online verification requires data retention.)
HB 1181 requires that its contents contain at least one-third of the age of the website to implement the “materials that are harmful to minors”. Age verification is available to all users who visit the website. This task is suitable for the entire website, not only for parts of adult content.
Another problem is that experts believe that ageing is basically ineffective. After all, teenagers who are not familiar with VPNs can easily understand them.
Today’s ruling comes after the Supreme Court had previously striked to try to age online content. In 1997, it refused Reno v. American Civil Liberties Union This is mainly due to concerns about First Amendment rights. Under U.S. law, adult content is considered to be protected voice.
Justice Elena Kagan summarizes critics’ concerns in opposition. (Judge Sotomayor and Jackson joined her.) “Adults have a constitutional right to watch what the state may prohibit children from speaking,” Kagan wrote. “It’s the fact of life, it’s the fact of the law that adults and children don’t live in sealed boxes. When preventing children from getting “the basis for obscene children’s words,” states sometimes take steps to prevent adults from watching it – even for adults, it’s an expression of constitutional protection.”
Another problem with the ruling is the “landslide” factor. Today’s rulings are not only in the bubble—it will also protect other states from criticism of similar laws. It may also mean that the laws we see continue to push the envelope and move the Overton window in an increasingly authoritarian direction. The presidential blueprint for the far-right project 2025 agenda hopes that porn will be banned completely. It even proposes to imprison those who created and distributed it and force them to register as sex offenders.
The ACLU slammed Friday’s decision. “The Supreme Court has moved away from decades of settlement precedents that ensure that comprehensive laws allegedly benefiting minors do not limit adults’ access to First Amendment protected materials,” Cecillia Wang, ACLU’s national legal director, wrote in a statement. “Texas regulations show those precedents why strict scrutiny is needed. The legislature claims to protect children from sexually explicit materials, but the law does not help blocking their access, but preventing adults from watching a large number of First Amendment protected content.”
