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

Barry Winiker/Getty Images

 

Connecting state and local government leaders

The high court has agreed to take up a case that focuses on legislation passed to prevent minors in Texas from accessing pornography. A decision could have implications for state efforts to limit children’s access to social media as well.

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.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.