Texas can still enforce its law protecting children from pornography. What that could mean for the future

The Supreme Court declined to block Texas’ law that requires pornography websites to verify the ages of users and restricts minors from accessing explicit material.

The decision came in response to an emergency request following a ruling from a federal appeals court. This doesn’t end the legal battle as it’s possible the court could hear the case later on.

Texas Attorney General Ken Paxton took to social media Tuesday when the court issued its order. “Children will continue to be protected from harmful content in Texas,” said Paxton.

The Free Speech Coalition, an adult website industry group, said in a statement, “We remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we’ve challenged.”

This Texas case may have implications for other ongoing legal disputes related to how children navigate the internet.

Here’s a breakdown of the case and what it may mean.

The implementation of the law limiting pornography use was originally delayed by a U.S. district court, but then the U.S. Court of Appeals for the 5th Circuit allowed the law to take effect — and found that the age-verification requirement was not a First Amendment violation. The state of Texas then sued Aylo, parent company of Pornhub, alleging that the company has not complied with the new law.

Other states, including Utah and Louisiana, have passed similar laws, which have also faced legal challenges. Utah’s law was upheld after the Free Speech Coalition sued, with a judge dismissing the suit altogether.

Paxton argued in his brief that the state’s new late “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.”

The internet has caused pornography to explode, Paxton wrote. “Through smartphones and other devices, children have omnipresent and instantaneous access to virtually unlimited amounts of pornography, and ‘approximately one in five youth experience unwanted online exposure to sexually explicit material.’”

“A necessary corollary of this court’s precedent is that states must be able to set and check the age of those accessing pornography — or require Applicants to do so. That is all the challenged provision does,” wrote Paxton.

The Free Speech Coalition, which filed the suit against Texas, said the law requires “intrusive age verification measures” and “the submission of personally identifying information over the internet” in order to access pornography websites.

It isn’t unusual for the Supreme Court to refuse to block a law by a simple order without further explanation, as it did in this case.

The appeals court offered a majority opinion and a dissent. “Because it is never obvious whether an internet user is an adult or a child, any attempt to identify the user will implicate adults in some way,” the majority opinion read, later noting examples of studies that show access to pornography does have the ability to harm children. The dissenting opinion argued that the state did not “operate within the sinews of the First Amendment.”

The majority relied on precedent established via a Supreme Court case known as Ginsberg v. New York.

Ginsberg v. New York

A man named Sam Ginsberg sold magazines with pornographic material in them. Ginsberg was convicted in New York under an anti-obscenity law for selling some of these magazines to a 16-year-old. The case made it up to the U.S. Supreme Court and was decided on April 22, 1968. The court ruled that while the magazines were not considered obscene for those 17-years-old and up (and could be sold to that age group), states had the power to restrict the sale of such materials to children.

“The well-being of its children is, of course, a subject within the State’s constitutional power to regulate,” Justice William J. Brennan wrote, also saying that it was not a violation of children’s constitutional freedoms to have the state restrict the sale of the magazines.

The dissent in the Texas case referred back to four different cases: Ginsberg: Sable Communications of California, Inc. v. FCC, Reno v. ACLU, United States v. Playboy Entertainment Group Inc. and Ashcroft v. ACLU.

“Each of these cases recognized the government’s compelling interest in protecting children from obscene materials, but nevertheless evaluated the laws at issue under strict scrutiny because the law infringed constitutionally protected speech or imposed distinctions based on content,” the dissent said.

Ashcroft v. ACLU

Ashcroft v. ACLU was also referred to in the opinion. After Congress passed the Child Online Protection Act, which attempted to restrict online distribution of material harmful to children (including pornography), the law was challenged in court. It never took effect and the Supreme Court ruled that it failed strict scrutiny.

Supreme Court Justice Antonin Scalia wrote the dissent in that case and disputed the idea that strict scrutiny should be the test employed in this instance. He wrote, “Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review.”

In the Texas case, the majority was skeptical that strict scrutiny was the proper test to apply — both because of Ginsberg and also, as it stated, “In other words, the dissent’s reading implies that the invention of the Internet somehow reduced the scope of the state’s ability to protect children. That is a dubious principle without support in existing Supreme Court case law.”

Can the state protect children from pornography on the internet?

The Texas case is where issues like the First Amendment, state’s rights and the interest of the government in protecting children meet.

Over the last two decades after Ashcroft, legislation aimed at protecting children from pornography has had a difficult run in the courts. That is until recently. Louisiana, the first state to pass a law of this kind requiring pornography websites to verify ages of its users, was also sued over its law .

Judge Susie Morgan of the U.S. District Court for the Eastern District of Louisiana dismissed the suit without prejudice (meaning it can be refiled) in late 2023.

If the Supreme Court does hear the case and sides with the appeals court in arguing that strict scrutiny doesn’t apply and states have a right to restrict children from accessing pornography, then the landscape for these laws could shift.

As for what’s next, the Supreme Court could decide to hear oral arguments on the case and then issue a decision.

Depending on what that decision is, it could be more difficult for groups challenging state laws age-gating access to pornography. It’s also possible that it could aid states in their arguments for restricting social media to specific ages.