ARGUMENT ANALYSIS

Supreme Court divided on Texas age-verification law for porn sites

The Supreme Court on Wednesday was divided over a challenge to a Texas law that requires pornography sites to verify the age of their users before providing access. Last year a federal appeals court in New Orleans allowed the state to enforce the law, holding that it was rationally related to the government’s interest in preventing young people from viewing porn.

After more than two hours of debate on Wednesday, it was not clear whether a majority of the justices were ready to uphold the lower court’s ruling. Some justices seemed to agree with the challengers, led by a trade group for the adult entertainment industry, that a federal appeals court in New Orleans should have applied a more stringent test to determine whether the law violates the First Amendment. But even that ruling might prove to be only a limited victory for the challengers in the short term.

The law at the center of the case is known as H.B. 1181. A federal judge in Austin, Tex., issued an order shortly before H.B. 1181 was slated to go into effect in 2023 that temporarily barred the state from enforcing it. Senior U.S. District Judge David Alan Ezra concluded that the law is likely unconstitutional.

But the 5th Circuit lifted Ezra’s order, clearing the way for the state to implement the age-verification requirement. The court of appeals applied a less rigorous standard of review, known as rational-basis review, than Ezra had used. That test looks at whether the law advances a legitimate state interest and, if so, whether there is a rational connection between that interest and the law. By contrast, the more rigorous standard of review, known as strict scrutiny, requires the government to show that the law serves a compelling government interest and is narrowly drawn to advance that interest.

Representing the challengers, Derek Shaffer told the justices that the 5th Circuit’s decision to apply rational-basis review was an “aberrant holding” that defies the Supreme Court’s “consistent precedents,” including the Supreme Court’s 2004 decision in Ashcroft v. ACLU, in which the justices applied strict scrutiny and concluded that a federal law – the Child Online Protection Act – similar to H.B. 1181 was likely unconstitutional.

Brian Fletcher, the principal deputy solicitor general who argued on behalf of the Biden administration, agreed with Shaffer that the court of appeals was wrong when it applied the less rigorous standard of review. But that should not prevent Congress or the states from preventing the distribution of pornography to children online, Fletcher emphasized.

Defending the law, Texas solicitor general Aaron Nielson stressed that the challengers do not dispute that the websites that H.B. 1181 targets harm children. When the Supreme Court faced a similar situation more than 50 years ago, in Ginsberg v. New York, he noted, it applied rational-basis review to a law that made it a crime for brick-and-mortar stores to sell pornographic magazines to young people.

If strict scrutiny applied to H.B. 1181, Nielson told the justices, Texas would have to satisfy the same high standard to keep children from entering strip clubs – something that the Supreme Court’s cases do not require, he said. And Texas has long tried to use content-filtering software, which the challengers cite as an alternative to H.B. 1181’s age-verification requirement, to keep children from having access to pornography, but the problem “has only gotten worse.”   

Chief Justice John Roberts and Justice Clarence Thomas appeared to suggest that even if the Supreme Court had in the past applied strict scrutiny to laws regulating adults’ access to sexually explicit content, advances in technology might justify taking another look at the standard of review. Access to pornography, Roberts observed has “exploded”: Not only is it much easier for teenagers to get access to porn, but the kind of porn that they can access has changed as well, becoming much more graphic.

Thomas noted that when the court issued its decision in Ashcroft, it was in a “world of dial-up Internet” access. “You would admit that we’re in an entirely different world” now, he said.

Shaffer resisted the idea that changes in technology justified a change in the standard of review. While acknowledging that the government has a compelling interest in preventing young people from gaining access to porn – the first part of the strict scrutiny test – he stressed that technological advances would merely be something to consider as part of the determination whether strict scrutiny is satisfied.

Justice Amy Coney Barrett, one of the justices on the court with teenaged children, also addressed the issue of technology and in particular the effectiveness of content-filtering software. She pointed out that it has “been 20 years” since the court’s ruling in Ashcroft, and that young people can now “get online porn through gaming systems, tablets.” “I can say from personal experience,” she told Shaffer ruefully, that content-filtering software for different systems that children can use to access the internet “is difficult to keep up with.”

Justice Samuel Alito echoed Barrett’s concerns, asking Shaffer whether he knows “a lot of parents who are more tech savvy than their 15-year-old children”? “There’s a huge volume of evidence,” Alito maintained, “that filtering doesn’t work.” Why, he queried, would so many states – 19 in total – have adopted age-verification requirements “if the filtering is so good?”

Justice Ketanji Brown Jackson countered that advances in technology would in any event “cut[] both ways”: Although such advances would increase young people’s access to technology and make porn more ubiquitous, she said, it also increases the burdens on adults who want to view porn online because of the greater likelihood that their privacy will be infringed.

Justice Sonia Sotomayor noted that she believed that many of her colleagues’ questions actually addressed the question of whether H.B. 1181 could satisfy strict scrutiny, rather than the question of what standard of review should apply in the first place. In her view, the answer to the latter question was a straightforward one, based on the Supreme Court’s cases: strict scrutiny.

Jackson agreed, emphasizing that Ginsberg – the case on which the court of appeals relied – was a case that dealt with the rights of young people, rather than the rights of adults.

Shaffer agreed. He told the justices that Ginsberg addressed only the rights of minors and did not impose an across-the-board age-verification requirement.

But even if the justices ultimately agree that the court of appeals applied the wrong standard, the law could remain in effect for the foreseeable future. The challengers had asked the Supreme Court both to hold that the 5th Circuit should have applied strict scrutiny and that the law fails that test, but it seemed possible that the justices could ignore the second question and instead send the case back for another look. In that case, Ezra’s order blocking the law could remain on hold while proceedings continue, allowing Texas to continue enforcement.

A decision in the case is expected by late June or early July.

This article was originally published at Howe on the Court.