The Supreme Court appeared open Wednesday to upholding a Texas law requiring pornography websites to verify the age of their users, as the justices expressed concerns during oral arguments about the ease children have accessing explicit videos online.
A group of challengers representing free speech advocates and major porn websites has asked the justices to overturn a state law that requires visitors to provide documentation, such as a government-issued ID, to verify their age.
Much of the discussion centered on whether states needed to take such a step to keep porn away from children, or if they could use other means, such as content filters that would not infringe on the free-speech rights of adults to access the online content they want.
Derek L. Shaffer, the attorney for the challengers, argued the Texas law was meant to target pornography websites because they’re disfavored by the state government and the law doesn’t prevent access to pornography, as search engines, social media websites and all foreign websites are not covered.
Upholding the Texas law would open the door to a “perilous wave of regulations” that could stifle free speech online, Shaffer said, and measures such as content filtering could accomplish the same goals. The challengers say the verification requirement for online access exposes adult visitors to potential identity theft, fraud and other risks.
Justice Brett M. Kavanaugh, part of the court’s conservative majority, said “content filtering may work to some extent” in restricting access to pornography, but it may not work as well as age verification.
Justice Amy Coney Barrett said content filtering may not be enough in the modern era, pointing to the ability of children to access material on everything from game consoles to smartphones.
“Let me just say that content-filtering for all those different devices, I can say from personal experience, is difficult to keep up with. And I think that the explosion of addiction to online porn has shown that content filtering isn’t working,” Barrett said.
Chief Justice John G. Roberts Jr. said that access to pornography has “exploded” in recent years, making the landscape a different place from when the justices decided previous free speech cases about access to porn. “It was very difficult for teenagers to get access to pornography that is available at the push of a button today,” Roberts said.
The law is currently in place in the state because of a ruling from the U.S. Court of Appeals for the 5th Circuit, and major pornographic websites such as Pornhub have announced they would no longer provide access in the state.
During Wednesday’s arguments, Texas Solicitor General Aaron L. Nielson defended the law, saying that the courts should not treat websites differently from traditional brick-and-mortar stores.
“We’ve tried content filtering for decades and the problem has only gotten worse,” Nielson said.
Nielson said that the Supreme Court has already recognized that minors do not have the same First Amendment rights as adults, and the state should be able to impose ID requirements in a similar way to how it does for strip clubs, gambling establishments and the like.
“As long as you have two different groups, you have to be able to tell the difference between the groups,” Nielson said.
Justice Elena Kagan said that following Texas’ preferred approach to the case could allow “spillover” state regulation of other disfavored speech.
Barrett said she had some “discomfort” with the idea of “watering down” the test normally used to protect free speech.
“I think there is a sense here that the state should be able to protect minors from some of this,” Barrett said, but there is “not a lot of room” for states to do so in the way that the court normally protects free speech.
An attorney for the Biden administration urged the justices to overturn the 5th Circuit decision but still allow an avenue for states and Congress to pass laws restricting access to porn online.
“There is a long tradition of imposing age restrictions on the distribution of this material,” Brian H. Fletcher said.
The justices are expected to issue a ruling in the case by the conclusion of the court’s term at the end of June.
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