The Supreme Court of the United States.
The U.S. Supreme Court ruled Friday that states may require adult websites to collect ID from users, upholding a Texas law intended to prevent anyone under 18 from accessing sexually explicit content.
Almost half the states, including Arizona, have adopted similar age verification laws in recent years in hopes of keeping children away from such material.
“Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages,” Justice Clarence Thomas wrote for the 6-3 conservative majority. “Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected.”
Arizona’s law will take effect 90 days after the current legislative session ends.
The 2023 Texas law requires websites on which at least one-third of the content is sexually explicit to block minors by verifying users’ age.
The three liberal justices readily agreed that states have the authority to keep obscene content away from minors – and that minors have no constitutional right to view such material.
The issue, in their view, is whether the measures a state takes also infringe on adults’ rights.
Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, argued that the court should require states to find the least intrusive mechanism possible.
“Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult,” Kagan wrote in her dissent.
The Free Speech Coalition, an adult industry group backed by such companies as Pornhub, challenged the law, arguing it restricts free speech, invades the privacy of consumers and exposes them to the risk of being tracked online.
The Texas law requires a government ID or a digital ID of some sort. The law lets the company choose a method but the challengers noted that Texas offers no app or other alternative to an official document such as a drivers license – meaning that users cannot conceal their identity.
“We are standing up not only for the rights of adult businesses and creators, but for the rights of adult Texans to access legal content in the privacy of their own home, without having to submit to surveillance,” the coalition’s executive director, Alison Boden, said when the group challenged the Texas law in 2023.
On Friday, Boden called the ruling “disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”
Corbin Barthold, director of appellate litigation at TechFreedom, a libertarian-leaning think tank, said the ruling “erodes internet freedom” and undermines the First Amendment. “It opens the door to more Internet age-gating,” he said in a statement.
Texas Attorney General Ken Paxton called the ruling “a major victory” and vowed rigorous enforcement of the law.
Social conservatives lauded the ruling.
“Research shows that young people exposed to pornography suffer from increased rates of depression, anxiety, violent behavior, sexual promiscuity and abuse, trafficking, and distorted views of relationships between men and women,” John Bursch, senior counsel at Alliance Defending Freedom, a legal advocacy group, said in a statement. “Texas has every right to pass laws that protect children from these types of harms.”
Annie Chestnut Tutor, a policy analyst at the Heritage Foundation, echoed the view that pornography does “irrefutable harm” to children. She said the ruling will allow states to hold “online platforms accountable for willfully providing access to children.”
Gov. Greg Abbott signed the measure in June 2023 and it was to take effect that September. A federal judge in Austin put it on hold. The 5th Circuit U.S. Court of Appeals overturned that order and the law took effect in November 2023.
Over the next few months, Paxton sued three companies that operate adult websites – including Aylo, a Canadian conglomerate that operates Pornhub and other sites – seeking orders forcing them to comply with the new law.
Instead, Aylo began blocking all users in Texas. As of oral arguments in January at the Supreme Court, Aylo had blocked users in 17 states with age verification laws.
The state’s solicitor general, Aaron Nielson, reminded justices that in 1968, the Supreme Court upheld a New York state ban on selling pornographic magazines to minors. Since then, smartphones and the Internet have made access to sexually explicit material easier than ever.
In May, Arizona Republicans pushed through a bill similar to the one in Texas. Just one Democrat in the Senate and two in the House backed the measure. Despite the opposition from most fellow Democrats, Gov. Katie Hobbs signed it.
State Rep. Nick Kupper, R-Surprise, the bill’s sponsor, has said he took inspiration from the Texas law.
“Parents now have another tool to protect their children,” he posted on X in response to the Supreme Court decision.
Under the Arizona law, violators face a fine up to $250,000 if a minor gains access to adult content due to a failure to verify a user’s age.
Aylo isn’t the only adult content company that has blocked IP addresses from states with age verification laws.
Some users may attempt to bypass the blockade by using a VPN to shield their actual location.
But that doesn’t relieve companies of their obligations under state law, said Iain Corby, executive director of the Age Verification Providers Association, an international group of companies who provide age verification services including government ID verification and facial recognition.
Given how widespread these age verification laws have become, Corby said, adult content sites could require all users to prove their age no matter their IP address or actual location.
“We expect this judgment to accelerate the adoption of age verification laws across the remaining 26 U.S. states and globally,” Corby said in a statement. “We look forward to working with both regulators and the adult industry to implement systems that are simple for users, including being reusable and interoperable across platforms.”
