Supreme Court Upholds Age-Verification Law
The Supreme Court upheld Texas’ age-verification legislation today in a 6-3 decision, with the six conservative justices ruling states can constitutionally require pornography companies to verify consumers’ ages.
“This is a major victory for children, parents and the ability of states to protect minors from the damaging effects of online pornography,” Texas Attorney General Ken Paxton, who defended the contested law, wrote in a press release.
“Companies have no right to expose children to pornography and must institute reasonable age verification measures.”
Free Speech Coalition v. Paxton concerned HB 1181, a 2023 Texas law requiring websites with a substantial amount of obscene or adult content — more than one-third of all content offered — verify consumers’ ages.
The Free Speech Coalition (FSC), which represents more than a dozen pornography companies, sued Texas, claiming HB 1181 infringed on pornographers’ freedom of speech, citizens’ privacy and adults’ right to access obscene content.
U.S. District Judge David Alan Ezra prevented Texas from enforcing HB 1181 in 2023 after determining it would not pass strict scrutiny — the highest standard of legal review reserved for laws that restrict speech based on its content.
The Fifth Circuit Court of Appeals reversed the lower court’s ruling in 2024, holding HB 1181 should be evaluated under rational-basis review — the lowest standard of legal review that only evaluates whether a law serves a legitimate government interest.
The Supreme Court heard oral arguments in Paxton on January 13. Though the court had previously evaluated obscenity cases with strict scrutiny, some justices acknowledged new precedent may be necessary in a digital age.
Justice Clarence Thomas authored the majority, joined by Chief Justice Roberts and Justices Alito, Kavanaugh, Gorsuch and Barrett.
The Court held HB 1181 must pass intermediate scrutiny — a middling standard of review appropriate for laws that only incidentally burden free speech.
“Adults have the right to access speech obscene only to minors, and submitting to age verification burdens the exercise of that right,” Thomas acknowledged, continuing:
To pass intermediate scrutiny, a law must serve a compelling government interest without “burden[ing] substantially more speech” than necessary to serve that purpose.
States not only have an undeniable interest in protecting children from obscenity, Thomas noted, but long-standing Constitutional authority to use age-verification laws to fulfill this interest.
“States have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults’ right to avail themselves of such material,” he wrote.
“HB 1181 simply adapts this approach to the digital age.”
FSC had argued age-verification would dissuade adults from exercising their right to consume pornography. Thomas found these arguments “unpersuasive.”
“The use of pornography has always been the subject of social stigma,” he reasoned. “This social reality has never been a reason to exempt the pornography industry from otherwise valid regulation.”
Justice Elena Kagan’s dissent, which Justices Sotomayor and Jackson joined, acknowledges the state has a compelling interest in protecting children from obscenity. It contended, however, HB 1181 should be evaluated under strict scrutiny.
Kagan wrote:
To pass strict scrutiny, a law must serve a compelling interest and restrict speech in the least burdensome way possible. Kagan does not believe HB 1181 would pass this test.
In the majority opinion, Thomas dismissed strict scrutiny as an inappropriate standard because HB 1181 does not ban adults from accessing obscene content. He further noted strict scrutiny should not be used to evaluate laws, like age-verification, that are “traditional and widely accepted as legitimate.”
The ruling establishes a constitutional avenue for states to require pornography companies to verify online consumers’ ages. It could also provide precedent for a federal age-verification law, like the SCREEN Act.
Porn consumption — and porn companies’ profits — plummet when states force them to check consumers’ ages. Traffic to Pornhub.com dropped 80% in Louisiana after it passed age-verification legislation in 2022, one spokesperson told the Institute for Family Studies.
That’s great news, given what we know about the exploitative pornography industry and its effect on human sexuality. The National Center on Sexual Exploitation writes of the ruling:
The Daily Citizen applauds the Supreme Court upholding the constitutionality of HB 1181 and, ultimately, siding with parents trying to protect their children from pornography.
Additional Articles and Resources
UPDATED: Pornography Age Verification Laws — What They Are and Which States have Them
Pornography is Bad for Humans. The Progressive Left Can’t Afford to Admit It.
Porn Companies Condition viewers to Desire Illegal and Abusive Content
Porn Companies Sued for Violating Kansas Age Verification Law
Proposed SCREEN Act Could Protect Kids from Porn
A Mother’s Sensibility at the Supreme Court Regarding Pornography
Pornhub Quits Texas Over Age Verification Law
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