EMERGENCY APPLICATION

Court allows Texas to enforce age verification for online porn sites

The Supreme Court on Tuesday declined to temporarily block a Texas law that requires pornographic websites to verify their users’ ages. In a brief unsigned order, the justices turned down a request from a group of challengers that included an adult industry trade association to put the law on hold to give them time to seek review of a ruling by a federal appeals court.

There were no public dissents from Tuesday’s order.

The law, known as H.B. 1181, was originally slated to go into effect last September. But the challengers, led by the Free Speech Coalition, went to federal court in August, challenging the law’s constitutionality.

Senior U.S. District Judge David Alan Ezra barred the state from enforcing the age-verification requirement, concluding that it likely violated the First Amendment. By requiring adults to submit personal data, Ezra reasoned, the law would discourage adults from accessing the websites because of concerns about identity theft and extortion. Moreover, Ezra added, other alternatives – such as content-filtering systems – are better suited to achieve the state’s goal of shielding children from sexual content.

The U.S. Court of Appeals for the 5th Circuit put Ezra’s order on hold while the state appealed, and in March a divided panel of the court of appeals issued a decision vacating Ezra’s injunction as it applied to the age-verification provision.

The challengers came to the Supreme Court earlier this month, asking the Supreme Court to intervene. They argued that the court is likely to grant review and reverse the 5th Circuit’s decision, contending that the case implicates “the uniform and faithful application of this Court’s precedents to the modern-day Internet as novel regulations traverse hallowed First Amendment ground.” Moreover, they added, “[p]rofound irreparable harm flows from” the requirement’s “chilling of adults’ access to protected sexual expression, especially now that Texas is pursuing enforcement proceedings” against websites that do not comply. By contrast, they told the justices, keeping the 5th Circuit’s decision on hold “for a limited time will not harm Texas appreciably.”

Texas urged the justices to allow it to keep the law in place for now, telling them that the law merely “requires the pornography industry that makes billions of dollars peddling smut to take commercially reasonable steps to ensure that those who access the material are adults.” Such a step, the state maintained, is necessary because of the “unprecedented explosion of access to hardcore pornography by kids,” through devices like smartphones, which is in turn “creating a public health crisis.”

Texas pushed back against the challengers’ suggestion that there is any urgency requiring the court to step in. Although the law has been enforceable since last fall, the state observed, when the court of appeals first put Ezra’s order on hold, the challengers “waited more than six months after the 5th Circuit merits panel issued its opinion before coming to this Court.”

This article was originally published at Howe on the Court.