Should minimum age rules apply to access porn online?

Should adult websites be made to verify that its users are of age?

The US Supreme Court is set to hear a challenge to a Texas law that requires porn websites to do so.

The law which went into effect in 2023 was initially blocked by a district judge.

However, the appeals court reinstated it last year.

But what do we know about the law? What do experts say?

Let’s take a closer look:

What do we know about the law?

As per UPI.com, the Texas law is officially  known as HB 1181.

Passed in June 2023, it has already led to some adult sites including Pornhub blocking access to the website in Texas.

According to CBS, the law states that porn websites must employ “reasonable age verification methods” to ensure that visitors are 18 years old and above.

Companies which have over a third of web content that is “sexual material harmful to minors” must comply with the law.

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Verification can be done digitally or through a government-issued ID.

Those who violate the law can be fined up to $10,000 (Rs 8.64 lakh) every day.

If a minor opens sexual material, the fine goes up to $250,000 (2.16 crore).

Interestingly, the law does not affect internet service providers, search engines and social media companies.

As per UPI.com, Texas Attorney-General Ken Paxton has claimed that the law is ‘vital to public health’ because smartphones give young people access to “unlimited amounts of hardcore pornography.”

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The law was then blocked by a federal judge who found that the age-verification provisions were subject to the strictest judicial scrutiny.

As per Chron.com, any law that constrains a fundamental right like free speech must pass strict scrutiny.

A law can be deemed invalid if it is written too broadly or of it isn’t “narrowly tailored” to achieve “the least restrictive” way to achieve its stated purpose.

Senior US District Judge David Alan Ezra issued a preliminary injunction in 2023,

Ezra found that “constitutionally protected speech will be chilled” and could sweep in non-porn websites hosting R-rated movies or sex education materials for high school students.

As per Chron.com, Ezra, who was appointed by Ronald Reagan appointee, said that though the law had a ‘legitimate’ goal, it would let the government “peer into the most intimate and personal aspects of people’s lives.”

The judge found that the law failed to meet this standard because it was under- and overinclusive, and also unclear.

The decision came just a day before the law was set to take effect.

However, the 5th US Circuit Court of Appeals then lifted the block – allowing the law to take effect.

The court found that the law does not violate the First Amendment and that the state has a “legitimate interest in preventing minors’ access to pornography.”

The court also said the lower court was wrong to apply the strictest judicial review.

The lower court, instead, should have assessed the law under the least-strict level.

It said under that bar the law is valid due to proof of “the sort of damage that access to pornography does to children.”

The New Orleans-based court in March ruled that the plaintiffs were unlikely to succeed in their First Amendment challenge to the age verification requirement.

The 5th Circuit upheld Ezra’s injunction against a separate provision of the law requiring websites to display “health warnings” about the effects of viewing pornography.

As per Chron.com, Pornhub then decided to cut off users in Texas.

Pornhub has expanded its ban as more and more US states – particularly in the South – have passed age-verification laws.

All eyes on Supreme Court

The law is again being challenged in the US Supreme Court on grounds that it violates the First Amendment – essentially free speech and expression.

A number of groups including the American Civil Liberties Union (ACLU) and the Free Speech Coalition – a trade group that represents adult film performers, producers, producers, distributors and websites like Pornhub – are taking on Texas in Free Speech Coalition et al. v. Paxton, as per CBS.

“Adults in America have a First Amendment right to read about sexual health, see R-rated movies, watch porn and otherwise access information about sex if they want to,” Vera Eidelman, staff attorney with the ACLU Speech, Privacy and Technology Project, said in a statement. “They should be allowed to exercise that right as they see fit, without having to worry about exposing their personal identifying information in the process.”

Eidelman said the challengers look forward to “defending the First Amendment rights of all Americans to access the internet free from surveillance and suppression.”

The 5th Circuit, Eidelman said, “wrongly allowed the government to rob adults of their online privacy and burden their access to protected speech, all under the guise of protecting children.”

“While Texas’ law may sound reasonable on its face, in practice, it is extraordinarily burdensome and invasive, effectively deterring adults from accessing legal content,” Alison Boden, executive director of the Free Speech Coalition, was quoted as saying by UPI.com.

The challengers have said that the law poses security and privacy concerns by exposing users to possible identity theft, tracking and extortion.

They also said that its effectiveness is undermined given that it would not restrict social media or search engines, where pornography is rampant.

In any event, the challengers added, content-filtering software works better to protect minors than laws like this.

The plaintiffs contend that the case is straightforward given the Supreme Court’s own precedents that treat non-obscene sexual content as constitutionally protected.

These precedents allow governments to limit access by minors to sexual material but, under the First Amendment, they may not burden access by adults to such content.

In the smartphone era when children can easily access “virtually unlimited” hardcore pornography, Texas said in a filing, the law “simply requires the pornography industry that (makes) billions of dollars from peddling smut to take commercially reasonable steps to ensure that those who access the material are adults.”

UPI.com quoted Texas Solicitor General Aaron Nelson as saying that the law does not ban adults from accessing pornography – nor does it require them to identify themselves.

It only requires porn websites to “to take commercially reasonable steps to ensure that their customers are not children.”

What will the court do?

That remains the question.

As per Chron.com, the apex court has already overturned a similar federal pornography law in 2004.

That case, Ashcroft v. ACLU (2004), saw the apex court nullify the 1998 Child Online Protection Act.

That law  too mandated that businesses with sexually explicit materials which are “harmful to minors” verify the ages of users or risk criminal charges.

This isn’t the first time the US Supreme Court made such a ruling either.

In fact, the court has long held that the government, due to the First Amendment cannot stop adults from viewing sexual content – even if the stated aim of the law is to protect children.

The Supreme Court relied on that argument in its landmark United States v. Playboy Entertainment Group case_._

The court held that a law banning adult channels from airing porn outside of certain hours unfairly restricted adults from accessing free speech.

However, with the US Supreme Court filled with Conservative justices and precedent seemingly of little value to the bench these days, it will be interesting to see how the court rules on this matter.

The court is likely to deliver its verdict by June 2025, as per CBS.

With inputs from agencies