To SCOTUS, Texas justify its laws on compulsory identification for porn | Tracer Tecz

On Wednesday, the Supreme Court has had a shot at considering arguments in that can decide if the Texas age-gating law that bars children from accessing pornography online is to have an unreasonable impact on adults. A ruling against Texas could spell the end for allegedly intrusive age verification laws in around 19 states. The court has not made a decision yet and is not likely to do so before summer 2025; that means it is impossible to suggest which direction the court will take. The issue for decision here is whether the 5 th Circuit was justified to stay the preliminary injunction which was hitherto preventing Texas from implementing the law or whether the decision should be vacated and remanded with the level of constitutional scrutiny that the 5th Circuit applied.

Texas and the 5th Circuit were also in harmony with the notion that a rational basis for limiting access to speech applied the lowest level of scrutiny. However, the Free Speech Coalition (FSC) and the American Civil Liberties Union (ACLU) filed a suit against Texas for an argument that stricter scrutiny might be needed. The civil rights groups argue that the statutory language — that is aimed at age- gating on any site where porn make up a third of content —poses the risk of denying willing adults access to protected speech whether which is sexual or may be sexual if web-hoster, editorial or administrative preference disallows ID on certain sites. A lawyer for the groups suing, Derek Shaffer, said that to the court on Wednesday that both parties agree that Texas does have an interest in preventing minors from accessing adult material online.

However, Shaffer stated his opinion that he believes that although Texas is sincere in arguing these concerns, the state ‘allegedly possesses a larger interest in policing pornography and keeping willing adults from consuming the material.” He said that Texas went for designing the law to require extra needed age- gating for bad purposes to suppress speech, replacing content-filtering since allegedly “they want to make it more difficult’ and ‘more costly” for adults to view porn.

If the judges confirm that the Texas’ regulations of an ID or transactional data (employment or bank) to access adult content is not more intrusive than an ID, to gamble or to buy porn personally in the store, such important precedent filling a potential legal gap, could help cement the age-gating laws like Texas’ in the nearly 19 other states.

Shaffer argued that it is ‘especially chilling of adult speech’ and pointed out that Texas has no acceptable digital ID currently in place, that could be thought as less restrictive to verify age online. The adult industry and thus its leading entertainment platform, Pornhub owner Aylo, has for years been pro-device-based AV. However, the justices wondered whether that might transfer the cost of safeguarding children from obscene content published on the Internet to the manufacturers of expanded phones, such as Apple or Google instead of the regulated websites.

Regarding today’s arguments, Aylo did not want to speak to Ars, responding to all questions about today’s oral arguments by referring Ars to the FSC and ACLU. Eric Goldman, Internet law expert, joined other experts to file a brief that explained the reality that age authentication on the Internet, “as was done by Texas law,” is “more problematic than the offline age authentication procedures” approved by SCOTUS.

He wrote a blog about them and he said that Texas may have lost the case. He wrote that his “view is that the Supreme Court isn’t likely to take Texas’ bait and will not agree with the Fifth Circuit’s apathetic level of constitutional review.” After the trial, Shaffer urged all the states that have enacted age-verification laws to ‘look at less restrictive and more effective options than used by Texas… We trust that the Court will also recognize that those laws targeting and impairing adults’ constitutional freedoms must meet strict scrutiny and that we await the Court’s decision with interest.”

Plaintiffs suing want SCOTUS to reverse and remand the case to the 5th Circuit, but also to instruct what exactly constitutes heightened scrutiny, and they have requested that it should be stated in no unclear terms that it would be necessary for the preliminary injunction to be granted and to remain in place while the case continues.

Adding to the conversation was DOJ attorney Brian Fletcher for the United States whose message to the court was that collectively they have “tremendous discomfort” with the proposition of “diluting strict scrutiny” here by supporting Texas. Shaffer pleaded to the court that Texas’ age-verification law as implemented would “will chill” speech and “will be invading privacy.” In addition, the ACLU stated that it is not shielding children who simply can use VPN and continue to navigate to other compliant adult websites or navigate with non-compliant sites they are possibly exposed to other online vices that mainstream commercial sites including Pornhub claim to fight more comprehensively.

”You can use VPNs – the click of a button essentially – to make it look like you are not in Texas anymore,” Shaffer pointed out. ‘You can do it through the search engines, you can do it through the social networks, you can access the content in the manners that children are most likely to access them.’ Texas attorney Aaron Nielson claimed holding the same was that the problem of kids accessing porn online has become ‘worse’ since the time that Texas has been trying allegedly less effective, less restrictive measures – content filtering.

‘Now age verification is Texas’ favored remedy, and strict scrutiny should not apply to a law that simply makes someone show ID to view foul material,’ Nielson said. Nielson said, “In our history we have always said kids can’t come and look at this.” So it appears to me historically improper to say, well actually it was presumptively unconstitutional.” But we've done it forever. Curiously, strict scrutiny has always apparently been met.” Similar to the groups suing, Texas also leading the charge also prayed for the specifics of the guidance to be as clear as possible to the 5th Circuit in case the Supreme Court vacates and remands the case.

But Texas wants justices to say again that even if the case is remanded, the 5th Circuit may reapply the stay of the preliminary injunction given after the 5th Circuit’s previous consideration of the matter. When on the defensive, Shaffer told SCOTUS while there might be “about 20 other laws that by some views may look a lot like Texas” law, “this is the worst of them.” Then, Paxton acted like a hostile regulator who went on saying to adults, you should not be here.

Shaffer then said: “I strongly urge this court to continue applying strict scrutiny where we’re discussing content-based burdens on speakers.” According to the ACLU’s Vera Eidelman, senior staff attorney at the Speech, Privacy, and Technology Project, the attempts to childproof the internet “do not only harm the possibility of everybody to get the information they may need but often grant the government far too many opportunities to target speech the officials do not like—on the alleged pretext of protecting children.”