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.
Another concern is that experts consider age-gating to be largely ineffective. After all, teens who are unfamiliar with VPNs can easily learn about them.
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 the concerns of critics 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.”
Another concern about the ruling is the “slippery slope” factor. Today’s ruling doesn’t only exist in a bubble — it will also shield other states from criticism about similar laws. That may also mean we see laws that continue to push the envelope and move the Overton window in increasingly autocratic directions. The far-right Project 2025 agenda presidential blueprint wants to ban porn altogether. It even proposes imprisoning those who create and distribute it and forcing them to register as sex offenders.
The ACLU lambasted Friday’s decision. “The Supreme Court has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials,” Cecillia Wang, ACLU national legal director, wrote in a statement. “The Texas statute at issue shows why those precedents applying strict scrutiny were needed. The legislature claims to be protecting children from sexually explicit materials, but the law will do little to block their access, and instead deters adults from viewing vast amounts of First Amendment-protected content.”
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