The Supreme Court is considering a Texas age-limiting law for porn sites

It was not clear who came out on top during oral arguments before the Supreme Court on Thursday regarding a Texas law requiring porn sites To technically prevent minors from accessing their pages.

Under HB 1181, passed in 2023, if at least a third of a website’s content is “sexual material harmful to minors,” the owner will be required to restrict access to it using age verification technology. What form age verification might take remains open to interpretation.

The court’s conservative justices seemed friendly to the argument that states need stronger tools to prevent minors from viewing pornography given its ease of access on cell phones and other devices. But they, along with the court’s three liberal justices, questioned Texas Solicitor General Aaron Nielsen about whether the state’s law should be subject to, or could continue, the strict standard of review that the court had previously established to analyze laws that might restrict forms of Protected speech.

The pornography industry, represented by the Free Expression Alliance trade association, challenged the law and obtained a preliminary injunction from a federal district court. But the Fifth Circuit Court of Appeals overturned that ruling, based on a standard known as rational basis review, which requires the party challenging the law to prove that the government has no legitimate interest in enacting the rules or that there is no reasonable connection between the rules and the government’s legitimate interests.

Before the Supreme Court on Thursday, Derek Shaffer, a lawyer representing the Free Speech Coalition, said the appeals court erred and should instead have held the law to a strict standard of scrutiny, which would have placed the burden on Texas to prove that HB 1181 did not seek Not only to achieve a compelling state interest, but it was also narrowly designed and did not constitute an undue burden on adults.

While states have a compelling interest in restricting minors’ access to pornography, Texas’ age verification requirement would have failed the strict audit test, Shaffer said, because age verification requirements created a significant burden on adults by requiring them to create a permanent account. . , a digital record of their visits to porn sites, which can be hacked or made public. Furthermore, he said Texas failed to consider other technological solutions, such as content filtering tools for minors’ devices, that would not have placed a burden on adult viewers.

Nielsen, who represents Texas, claimed that porn sites could use biometric identifiers such as fingerprints or facial recognition without raising privacy concerns or unduly burdening adults. “Age verification today is simple, safe and common, including by unspecified means,” he said.

In their questioning, the judges did not delve into the effectiveness or privacy implications of various age verification technologies. Their review focused primarily on how to interpret the court’s decades-old precedent on when to apply strict scrutiny given how much the Internet has changed since the most recent cases were decided.

“For us, to apply anything less (than strict scrutiny) would be to overturn at least five precedents,” Justice Elena Kagan said at one point.