Is age verification technology an ‘undue burden’? The Supreme Court will decide.

The U.S. Supreme Court agreed last week to hear a challenge to a Texas online age verification law, in a case that could have implications for states’ efforts to limit minors’ use of adult websites and social media platforms.

The plaintiffs in the case, the Free Speech Coalition, a trade association for the adult entertainment industry, argue that a 2023 law requiring websites with pornography to use age verification technology and have health warnings on their pages places an undue burden on users.

The New Orleans-based 5th Circuit of the U.S. Court of Appeals, which has come under criticism for its right leanings and recently saw the Supreme Court reject four of its rulings, upheld the law in March after a district judge initially blocked it. That lower court tested the law under a “rational basis” review, which determines whether it is related to a legitimate government interest, but the Free Speech Coalition argued it should be subject to strict scrutiny, a tougher test, instead.

The Texas law was approved last year amid a broader push in the state and nationwide to limit children’s exposure to adult material and access to social media as policymakers grapple with how to confront a youth mental health crisis. Neighboring Louisiana and more than a dozen other states have similarly turned to age verification technology to prevent minors from viewing adult content. 

Separately, many states have looked to use age verification technology to implement restrictions on minors using social media as well. A decision by the Supreme Court here could also have implications for those social media laws. The use of age verification technology to protect minors is popular in other countries, but remains controversial in the U.S. 

Pornhub, meanwhile, suspended its website in Texas following the 5th Circuit’s ruling. The law, which says that any website where one-third or more of its content is deemed “harmful to minors” must verify users’ ages before they can proceed, remains in effect.

However, it could be a tall order to get the law overturned. While petitioners acknowledged that the Supreme Court has “repeatedly held that States may rationally restrict minors’ access to sexual materials,” they also noted that those efforts must withstand strict scrutiny if they burden adults’ access to constitutionally protected speech.

“Despite proponents’ claims, online age verification is simply not the same as flashing an ID at a check-out counter. The process is invasive and burdensome, with significant privacy risks for adult consumers,” Alison Boden, executive director of the Free Speech Coalition, said in a statement. “Sexual expression is the canary in the coal mine of free speech, and we look forward to defending the rights of all Americans to access the internet privately and free from surveillance.”

Texas Attorney General Ken Paxton said the law is “important” and that he would defend it vigorously. “I look forward to defeating the porn industry’s efforts to keep minors in their audience,” Paxton wrote in a post on X, formerly Twitter.

As with other recent cases on social media and free speech, opponents of the Texas law said in a petition asking the high court to review the case that it “presents a far-reaching question about government efforts to burden disfavored expression of the kind this Court has repeatedly deemed worthy of review—in its leading sexual-content cases and many others.”

The petition argues that the 5th Circuit’s decision to leave this law in place “openly defies” previous Supreme Court precedent that states can restrict minors’ access to sexual materials, but not place an undue burden on adults. Opponents argued that the stipulation applying to any website with one-third of its content deemed harmful is a “broad category that includes virtually any salacious content.” And it says the need for users to submit personal information “poses unique security and privacy concerns.”

The district court applied strict scrutiny and found that the law does place an undue burden on adults, the petition continues, but the 5th Circuit said age verification is only subject to rational basis review. It called that finding “untenable and erroneous as a matter of law,” and said it would inflict a “profound chill” on adults’ use of such websites.

In response, Paxton and the Office of the Texas Attorney General argued that as every state bars minors from purchasing pornographic materials, “Texas’ methods of enforcing those age restrictions has evolved, however, because it must.” The brief argued that such material “includes content orders of magnitude more graphic, violent, and degrading” than the magazines found in previous decades.

“This statute does not prohibit the performance, production, or even sale of pornography but, more modestly, simply requires the pornography industry that make billions of dollars from peddling smut to take commercially reasonable steps to ensure that those who access the material are adults,” the brief continues. “There is nothing unconstitutional about it.”

In a paper on how to address children’s online safety, the Information Technology and Innovation Foundation warned that age verification could be “burdensome” and could run into difficulties with the First Amendment.

For adult websites specifically, ITIF said that while age verification “creates a barrier” to prevent children from accessing inappropriate content, it also “does not address sexually explicit content on mainstream websites.” It could even boost the growth of “bad actors” rather than websites that comply with the law, the report said.

Still, Texas argues that government intervention is necessary. 

In its brief to the Supreme Court, the state warned that children easily accessing pornography “is creating a public health crisis.” Due to the proliferation of “smartphones and other devices, children have omnipresent and instantaneous access to virtually unlimited amounts of pornography,” the state said, adding that “approximately one in five youth experience unwanted online exposure to sexually explicit material.”