It was not clear who was in charge during oral arguments before the Supreme Court on Thursday over a Texas law that would require pornographic websites. in order to technologically block access to their pages by minors.
Under the bill, HB 1181, passed in 2023, if at least a third of a website’s content is “sexual material harmful to minors,” the owner will have to restrict access to it with age verification technology. What form that age verification could take remains open to interpretation.
The court’s conservative justices appeared friendly to the argument that states need stronger tools to prevent minors from viewing pornography given the ease with which it can be accessed on cellphones and other devices. But along with the court’s three liberal justices, they questioned Texas’ attorney general, Aaron Nielsen, about whether the state law should be subjected to, and survive, the strict standard of review the court has previously set for analyzing laws that can limit protected forms of speech.
The porn industry, represented by the trade association Free Speech Coalition, challenged the law and won a preliminary injunction from a federal district court. But the 5th Circuit Court of Appeals overturned that ruling, based on a standard known as rational basis review, which requires that a party challenging a law must prove that the government has no legitimate interest in enacting the rule or that there is no reasonable connection between the rule and the government’s legitimate interest .
Before the Supreme Court on Thursday, Derek Shaffer, an attorney representing the Free Speech Coalition, argued that the appeals court erred and instead should have subjected the law to a stricter standard of review, which would have placed the burden on Texas to prove that HB 1181 was not merely a search for a compelling state interest, but was also narrowly tailored and did not unduly burden adults.
While states have a vested interest in limiting minors’ access to pornography, Texas’ age-verification requirement would not pass the strict test, Shaffer argued, because the age-verification requirements created a heavy burden on adults by requiring them to create a permanent, digital record of their pornography visits. pages, which could be hacked or otherwise made public. Furthermore, he argued, Texas failed to consider other technological solutions, such as content filtering tools for minors’ devices, that would not burden adult viewers.
Nielsen, the Texas representative, argued that pornographic websites can use biometric identifiers such as handprints or facial recognition without compromising privacy or unnecessarily burdening adults. “Age verification today is simple, secure and common, including through means without identification,” he said.
In their questioning, the justices did not delve into the effectiveness or privacy implications of various age-verification technologies. Their review focused largely on how to interpret decades-old court precedent on when to apply strict surveillance given the significant change the Internet has undergone since the last of those cases was decided.
“Let’s apply anything less [than strict scrutiny] it would be to overturn at least five precedents,” Justice Elena Kagan said at one point.