The US Supreme Court has upheld a Texas law that could have broad implications for online free speech. The court ruled 6-3 in affirming Texas law HB 1181, which requires websites that host adult content to implement age verification.
The nonprofit Free Speech Coalition petitioned the top court in April 2024 to review the law. (The organization represents the adult industry.) Texas was one of many states passing age-verification laws aimed at porn websites. Pornhub has exited 17 states due to similar legislation.
Critics across the political spectrum have noted that HB 1181 has concerning implications for the First Amendment and online privacy. The EFF notes that no age verification method exists that is both accurate and respects user privacy. (Unlike flashing an ID in person, online verification requires data retention.)
HB 1181 requires websites that contain at least “one-third” of their content as “material harmful to minors” to implement age-gating. The age verification applies to all users visiting the sites. The mandate applies to the entire website, not only the parts with adult content.
Before today’s ruling, the Supreme Court had previously struck down attempts to age-gate online content. In 1997, it rejected Reno v. American Civil Liberties Union primarily due to concerns over First Amendment rights. Under US law, adult content is considered protected speech.
Justice Elena Kagan summarized critics’ concerns in her dissenting opinion. (Justices Sotomayor and Jackson joined her.) “Adults have a constitutional right to view the very same speech that a State may prohibit for children,” Kagan wrote. “And it is a fact of life—and also of law—that adults and children do not live in hermetically sealed boxes. In preventing children from gaining access to ‘obscene for children’ speech, States sometimes take measures impeding adults from viewing it too — even though, for adults, it is constitutionally protected expression.”
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