Supreme Court Upholds Texas Age-Verification Law for Porn Sites

The U.S. Supreme Court in a 6-3 decision upheld a Texas law requiring pornography sites to institute age-verification measures to ensure children can’t access them.

The 2023 Texas law applies to online publishers whose content is more than one-third “sexual material harmful to minors” and requires them to verify the age of all visitors using a government-issued ID or “public or private transactional data” to ensure they are 18 or older.

The court’s ruling in the case, Free Speech Coalition, Inc. et al. v. Ken Paxton, Attorney General of Texas, is available at this link.

Writing for the majority, Justice Clarence Thomas cited legal precedents finding states may prevent minors from accessing pornographic material but may not prevent adults from doing the same.

“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective,” Thomas wrote. “That power includes the power to require proof of age before an individual can access such speech. It follows that no person — adult or child — has a First Amendment right to access such speech without first submitting proof of age.”

Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented.

The Texas law was signed by Republican Gov. Greg Abbott in June 2023 but was on hold after the lawsuit filed by the Free Speech Coalition (a group that includes Pornhub’s parent company) resulted in a preliminary injunction staying its enforcement. A federal district court judge ruled in August 2023 that the Texas law violated the U.S. Constitution’s First Amendment prohibition against free-speech restrictions. Last year a federal appeals court upheld the law (while it struck down a part of the law requiring porn sites to display “health warnings” about the content).

In response to the 2024 ruling, Pornhub and other affiliated adult websites blocked access to users in Texas while the decision was being appealed.

Samir Jain, VP of policy for digital rights advocacy group Center for Democracy & Technology, said the Supreme Court’s ruling “overturns decades of precedent and has the potential to upend access to First Amendment-protected speech on the internet for everyone, children and adults alike.”

“Age-verification requirements still raise serious privacy and free expression concerns. If states are to go forward with these burdensome laws, age-verification tools must be accurate and limit collection, sharing, and retention of personal information, particularly sensitive information like birthdate and biometric data,” Jain said in a statement. “Systems have to work equitably for all individuals and provide users with choice and control. Without those protections, age verification will remain a hugely problematic burden on users’ privacy and right to access lawful content.”

The National Center on Sexual Exploitation, which had filed an amicus brief with the Supreme Court representing 15 Texas state senators in support of the law, applauded the ruling.

“The SCOTUS ruling upholding Texas’ law creates important precedent establishing that age verification is a constitutional way to prevent children from accessing pornography online,” said Dani Pinter, SVP and director of the law center at the NCOSE. “This ruling paves the way for other states to pass similar legislation and will have a profound positive impact on preventing children from being exposed to pornography online.”