WASHINGTON—The conservative majority on the U.S. Supreme Court ruled in favor of the state of Texas today, affirming that a controversial age verification law targeting adult entertainment platforms was constitutional despite a federal district court initially finding the state law, House Bill (HB) 1181, facially unconstitutional.
Friday's high court decision was released among other major decisions of the court, signaling the end of the current Supreme Court term. In context, the decision allows the state of Texas to enforce HB 1181 under a similar ruling made by the ultraconservative U.S. Fifth Circuit Court of Appeals.
The Fifth Circuit in this case, Free Speech Coalition et al. v. Paxton, found HB 1181 constitutional by applying a much lower standard of scrutiny of judicial review.
The standard is typically strict scrutiny on issues about civil liberties and the First Amendment. Unfortunately, the high court characterized age verification laws as a "reasonable regulation" in protecting minors from sexual content.
“As it has been throughout history, pornography is once again the canary in the coal mine of free expression,” said Alison Boden, executive director of adult industry trade group the Free Speech Coalition (FSC). FSC was the top-line plaintiff along with the parent companies of some of the world's largest adult entertainment platforms, like Pornhub.com and XVideos.com. The American Civil Liberties Union (ACLU) co-represented FSC and the porn companies.
"The government should not have the right to demand that we sacrifice our privacy and security to use the internet," Boden added.
"This law has failed to keep minors away from sexual content, yet continues to have a massive chilling effect on adults," adds Boden. "The outcome is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”
Vera Eidelman, senior staff attorney with the ACLU's Speech, Privacy and Technology Project, clarified, "Today's decision does not mean that age verification can be lawfully imposed across the internet. With this decision, the court has carved out an unprincipled pornography exception to the First Amendment. The Constitution should protect adults’ rights to access information about sex online, even if the government thinks it is too inappropriate for children to see."
The union's national legal director, Cecillia Wang, added, "The Supreme Court has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials."
Texas Attorney General Ken Paxton applauded the decision in his favor.
“This is a major victory for children, parents, and the ability of states to protect minors from the damaging effects of online pornography,” said Paxton. “Companies have no right to expose children to pornography and must institute reasonable age verification measures."
Paxton has sued several companies already under the age verification law, including Aylo, the parent company of Pornhub. Other sites that have been sued by Paxton and the cases ultimately settled include Multi Media LLC., the parent company of Chaturbate.com.
"HB 1181 simply requires adults to verify their age before they can access speech that is obscene to children," the high court's decision reads. "The statute advances the State’s important interest in shielding children from sexually explicit content. And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identification and sharing transactional data. The judgment of the Court of Appeals for the Fifth Circuit is affirmed."
Justice Clarence Thomas drafted the opinion for the majority of the court, which included the other five conservative justices. The three liberal justices, led by Justice Elena Kagan, dissented, indicating that HB 1181 and age verification legislation in its various forms violate civil liberties.
"Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience," writes Kagan in the dissent. "But the First Amendment protects those sexually explicit materials for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children.
"That is what we have held in cases indistinguishable from this one. And that is what foundational First Amendment principles demand," Kagan added.
Corey Silverstein, a First Amendment attorney specializing in adult industry clients, told AVN that he is "livid" with the application of such a lower standard of scrutiny.
"I am extremely disappointed by the court's decision," Silverstein said. "It is going to take me some time to digest and analyze its impact on my clients and the adult entertainment industry as a whole. But, age verification in the United States is clearly here to stay. This was a loss for free speech and the First Amendment."
Silverstein then explained that such a sweeping decision could upend other legal challenges surrounding age verification in which stakeholders from the adult entertainment industry are currently engaged.
Larry Walters, another prominent adult entertainment industry lawyer, shared Silverstein's sentiments.
"Application of intermediate scrutiny to this type of law is an unfortunate development for the First Amendment, user privacy, and the adult industry," said Walters. "However, the Court did not go as far as Texas wanted, or as far as the Fifth Circuit decided, by upholding the law based on the rational basis test."
Walters explained that the high court decided to compromise on the level of scrutiny it would place on House Bill 1181. Initially, the Fifth Circuit applied one of the lowest standards of scrutiny on the law, rational basis review. Imagine the levels of judicial scrutiny as a pyramid. Rational basis review is at the base, used widely on most issues before courts. At the very top of the pyramid is strict scrutiny, which is the highest level of judicial review on laws and policies that could significantly restrict people's rights.
While strict scrutiny is usually the norm for cases about sexual expression and pornography on the internet, the high court decided to split the baby and apply intermediate scrutiny as to whether the Texas age verification law is unconstitutional or not. Intermediate scrutiny was applied because they determined HB 1181 as serving an important government objective to prevent minors from viewing age-restricted materials that were readily available on the internet.
Allan Gelbard, another adult industry attorney, also shared briefly with AVN that he saw today's ruling as "[an] intellectually dishonest, indefensible, and yet completely predictable result from a results-driven court."
The Electronic Frontier Foundation (EFF), a civil society organization that asked the high court to protect the First Amendment in this case, expressed similar dismay.
"This ruling allows states to enact onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize their data security and privacy," said Aaron Mackey, the EFF's free speech and transparency litigation director.
"These are real and immense burdens on adults, and the court was wrong to ignore them in upholding Texas’ law," added Mackey in a press statement sent to AVN and other news outlets. "Importantly, the Court's reasoning applies only to age-verification rules for certain sexual material, and not to age limits in general."
He added, "We will continue to fight against age restrictions on online access more broadly, such as on social media and specific online features."
The Foundation for Individual Rights and Expression (FIRE) is also concerned by the ruling. FIRE also pressed the high court to render the Texas law unconstitutional.
"Americans will live to regret the day we let the government condition access to protected speech on proof of our identity," explained FIRE's chief counsel Bob Corn-Revere. "FIRE will fight nationwide to ensure that this erosion of our rights goes no further."
On a similar note, the Woodhull Freedom Foundation expressed concern over the implications of sexual expression that isn't even considered pornographic.
"This decision is not just wrong—it’s dangerous," said Ricci Joy Levy, the president and CEO of Woodhull. "It undermines the fundamental human right to sexual freedom and expression, rights that are essential to our dignity, autonomy, and health."
The Age Verification Providers Association (AVPA) celebrated the court's ruling as a boon for online safety and its member companies.
“We welcome the Court’s decision to uphold Texas’ law, accepting that modern age assurance technology is effective, proportionate, and privacy-preserving," said Iain Corby, AVPA's executive director.
"With over a billion age checks conducted globally each year, age verification is now a proven tool to help protect children from harmful online content.
"We will also continue to support lawmakers around the world in aligning regulation with emerging international standards, ensuring adult sites can comply consistently across jurisdictions and operate on a level playing field.”
Also pleased is a state lawmaker from Louisiana who is credited as being one of the driving forces behind the age verification legislative push. Republican state Rep. Laurie Schlegel sponsored the nation's first age verification bill to become law in early 2023 after being adopted by the state legislature in 2022.
"Today, the U.S. Supreme Court upheld that approach in a 6-3 decision, holding that such law warrants intermediate scrutiny, not strict scrutiny," Schlegel wrote in a post to her followers on the social media website X.com. She thanked Attorney General Paxton of Texas, adding, "They also said that age verification survives it. A landmark shift.”
Back on the front of the adult entertainment industry, the industry-funded Association of Sites Advocating Child Protection (ASACP) has expressed its alarm at the far more aggressive intentions of the pro-age verification stakeholders despite the industry's proactivity to counter minors viewing otherwise legally-compliant content.
“By opening the door to more aggressive AV mandates, the [high] court has shifted the responsibility of online child protection away from parents and onto the backs of bureaucrats and ideologues,” explained Tim Henning, the executive director of the association.
“ASACP will closely monitor the Court’s decision and the fallout it brings to the industry, as we move onto the next phase of online child protection," said Henning in a press statement, further urging adult platforms to at least comply and implement the association's "Restricted to Adults" labeling on their websites.
This is a developing story.
