Online age verification laws await legal spotlight

More states have approved laws requiring adult entertainment websites to verify users’ ages, and next week those laws face a major test before the U.S. Supreme Court.

Justices will on Wednesday debate a lawsuit against Texas’ 2023 law requiring age verification on websites that have at least one third of their content deemed “harmful to minors.” The lawsuit came from the Free Speech Coalition, a trade association that represents the pornography and adult entertainment industry.

A district court struck the law down, but the U.S. Court of Appeals for the Fifth Circuit reversed that ruling and upheld the law’s age verification requirements while striking down a mandate that adult websites post health warnings about pornography. The Supreme Court allowed the law to take effect ahead of this final appeal.

Plaintiffs have argued that age verification like this Texas law places an undue burden on visitors to adult entertainment sites, and restricts users’ First Amendment right to access all manner of information and content. On a press call hosted by the American Civil Liberties Union, which is one of the plaintiffs, experts argued that this law could open the door to restricting online access to information about sexual health, identity and consent, as well as other material deemed by the government to be inappropriate for minors.

“This case matters because it's about how the government can treat speech it doesn't like, and pornography is often the canary in the coal mine for free speech,” said Vera Eidelman, a staff attorney for the ACLU’s Speech, Privacy, and Technology Project. “It also matters because it's about the future of free speech online.”

Many other states have passed their own age verification laws, according to a tracker by the Free Speech Coalition. All those laws, starting in Louisiana, have gone into effect, and in response many of the largest adult entertainment sites have pulled out of those states rather than comply. Meanwhile, Texas Attorney General Ken Paxton has announced two separate enforcement actions against three adult entertainment companies for allegedly violating the state’s law. He said the sites are “on the run.”

Others don’t see it that way. Mike Stabile, the Free Speech Coalition’s director of public policy, said during the press call that these laws and their — albeit spotty — enforcement, has created a “chilling effect” across legitimate adult entertainment businesses and users. He also said people might just “go someplace else” to find such content, including the social media platforms that are exempted under Texas’ law, or more unsavory places.

Proponents of the Texas law — and similar ones across the country — remain adamant they are implementing them to protect children from obscene material.

In a November brief filed with the Supreme Court, Paxton said that the law’s opponents “do not dispute that the pornography they sell is harmful to children and that if they were to peddle their wares from brick-and-mortar bookstores or sidewalk magazine stands, Texas could combat that harm by requiring them to make sure their customers are not children.”

The state also contends that the First Amendment does not protect adult entertainment websites’ “right to distribute a nearly inexhaustible amount of obscenity to any child with a smartphone.” Other states aligned with Texas on this issue similarly argued that their “compelling interest in protecting minors is at its height here.”

Those called the Texas law a “modest regulation,” while Louisiana Rep. Laurie Schlegel, the Republican who spearheaded that state’s regulation, said in a brief that age verification technology “is no more a substantial or significant burden on any rights than an ID check at the drug store or the news stand.”

Opponents of the law said age verification places an undue burden on everyone, even as the technology has evolved.

“There is no magic wand that allows a website from afar to only age verify people who are minors,” said Lee Rowland, executive director of the National Coalition Against Censorship. “That's the very purpose of age verification. There is no mechanism of age verification that works without subjecting all of us to it.”

Instead, this push against pornography represents the latest “moral panic,” said Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression. Rowland argued that governments are turning to “legal warfare” to make such panics go away. But the pair said this will go down in history alongside violent video games, dime novels, jazz music and more cultural phenomena.

But previous Supreme Court cases have found against governments every time they tried to restrict speech. Speakers on the press call said there is precedent for the justices to find against Texas in this case too.

“It is a time-tested historical pattern where you see government overreactions to moral panics and look back retrospectively, it seems like people wonder what all the fuss was about,” Corn-Revere said. “Here you see this pattern recurring again, and courts have time and again with other technologies, up to and including the internet, held that you don't weaken the constitutional standards in response to these technological changes.”