Porn access debate comes before the conservative-majority Supreme Court

Access to pornographic content returns to the forefront of the U.S. Supreme Court on Wednesday. The Free Speech Coalition, the trade association for the adult entertainment industry, is challenging the validity of a Texas law that mandates age verification to access websites with explicit sexual content, in an effort to protect minors. The coalition argues that the law infringes on the right to access constitutionally protected content and, by extension, freedom of speech. Nineteen states under Republican control have passed similar laws, meaning the Court’s decision, made by a conservative majority, will have significant implications across much of the country

The controversial HB 1181 law stipulates that “a commercial entity that knowingly and intentionally publishes or distributes material on an internet website, including a social media platform, more than one-third of which is sexual material harmful to minors shall, shall use reasonable age verification methods.”

Possible verification methods include providing a copy of an ID, but also include digital systems such as facial recognition using artificial intelligence or registration through third parties. The law prohibits identity verifiers from retaining users’ personal information.

Major pornography websites, including Pornhub, PornTube, and YouPorn, have opted to block users from states where such laws are in effect, rather than invest in age verification systems or services. Those who have dared to challenge the Texas law have faced repeated fines from authorities.

Very few have implemented a verification system. The requirement does not apply to search engines or social networks like X, which under Elon Musk’s leadership has allowed space for pornography, as less than a third of its content falls under that classification.

The law went into effect in September 2023. Pornhub and other organizations sued Texas, initially securing an injunction to halt enforcement that same month. However, Texas Attorney General Ken Paxton appealed to the U.S. Court of Appeals for the Fifth Circuit. In November of that year, he successfully obtained a stay of the court’s decision, allowing the rule to continue to be enforced.

In March of the following year, the same court issued a 78-page ruling that partially vacated the original injunction, determining that the age verification criteria were constitutional. “The age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the ruling stated, concluding that the law does not violate the First Amendment, which protects free speech.

Supreme Court precedents

Porn industry employers and civil rights organizations have appealed to the Supreme Court, which has agreed to hear the case: Free Speech Coalition v. Paxton. Supreme Court precedent, as established in prior cases, asserts that states can rationally restrict minors' access to sexual material. However, such restrictions must pass strict scrutiny if they impede adults' access to constitutionally protected content.

Moreover, in the past, the Supreme Court has made a distinction between non-obscene and obscene sexual content, which is not constitutionally protected. The Supreme Court defines obscene material narrowly as content that not only “appeals to the prurient interest” but also “depicts or describes sexual conduct in a patently offensive way” and “lacks serious literary, artistic, political, or scientific value.” Obscene material is prohibited and criminalized under other Texas laws, and is not the focus of the current appeal.

In cases such as Reno v. American Civil Liberties Union (ACLU) in 1997 and Ashcroft v. ACLU in 2002, the Supreme Court sided with promoters of pornographic sites and civil rights groups. However, the composition of the Court has since shifted. It now holds a conservative supermajority of six out of nine justices, who have not hesitated to diverge from long-established precedents on issues such as abortion and affirmative action in university admissions.

Texas argues that its restrictions are similar to those applied to minors to prevent them from consuming tobacco, alcohol, or renting a car. However, the petitioners counter that these activities are not protected by freedom of speech and are of a fundamentally different nature.

“Most people would not be overly troubled to be linked to a car rental or wine purchase,” they argue in their latest brief filed with the Supreme Court. “By contrast, as the district court found and common sense confirms, interposing age verification before visitors can access sexual content online has a ‘substantial chilling effect’ and ‘deters adults’ access,’ given the risk that ‘disclosures, leaks, or hacks’ could ‘reveal intimate desires and preferences,’”

The petitioners also emphasize that the law allows minors to access pornography through search engines or social networks (which do not dedicate more than a third of their content to the subject) and that it does not exclude content with cultural, scientific, or educational value intended only for adults. The petitioners suggest that there are less burdensome alternatives, such as content filters for minors that can be installed on devices.

The wave of identity verification laws is part of a broader reaction against pornography, exemplified by the so-called Project 2025, a conservative blueprint designed to guide Republican policies in the face of a second Trump presidency.

“Pornography should be outlawed,” states the 900-page policy wish list. “The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.”

The hearing for the case is scheduled for Wednesday, with a ruling possibly delayed until June, when the court’s term concludes.

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