Image 01 Image 03

SCOTUS Hears Challenge to Texas Porn Age-Verification Law

SCOTUS Hears Challenge to Texas Porn Age-Verification Law

The case pits the First Amendment rights of adults against Texas’s interest in protecting minors

On Wednesday, the U.S. Supreme Court heard oral arguments in the First Amendment case Free Speech Coalition, Inc. v. Paxton.

The case pits the Free Speech Coalition, a lobbying arm of the pornography industry, against the State of Texas, which enacted an age-verification law for online pornography purveyors to prevent access by minors.

The Free Speech Coalition argues the law burdens the First Amendment right of adults to access pornographic materials because the age-verification process requires adults to provide identifying information. This, the challenger argues, poses a barrier to access for adults wishing to keep their pornography use or preferences private.

The potential threat of a website selling or a hacker accessing identifying information could deter adults from accessing constitutionally protected materials, the Free Speech Coalition argues.

The law

The challenged Texas law requires commercial entities to use age-verification methods to prevent minors from accessing pornographic materials if the entity’s site includes material “more than one-third of which is sexual material harmful to minors.”

The law defines “sexual material harmful to minors” as “any material that”

(A) the average person applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to or pander to the prurient interest;

(B) in a manner patently offensive with respect to minors, exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated displays or depictions of:

(i) a person’s pubic hair, anus, or genitals or the nipple of the female breast;

(ii) touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals; or

(iii) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Acceptable age-verification methods require “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.”

For user privacy, the “commercial entity that performs the age verification . . . or a third party that performs the age verification . . . may not retain any identifying information of the individual.”

Oral argument

Derek Shaffer argued on behalf of the Free Speech coalition. Shaffer challenged the Fifth Circuit’s decision upholding the Texas law for allegedly using the wrong standard.

Shaffer also argued that content-filtering systems, not age-verification systems, were the constitutionally appropriate solution to the problem of minors accessing pornographic materials.

Justice Barrett pushed back on Shaffer’s privacy concerns, reasoning that a person visiting a brick-and-mortar adult bookstore would also have to show identification to verify age. Shaffer replied that the creation of a permanent online record provided an inviting target for hackers.

Shaffer also criticized the under-inclusivity of the Texas law, which he argued minors could easily circumvent using a virtual private network to create the appearance of being outside Texas. Justice Kavanaugh pushed back:

[T]hat’s an under-inclusiveness argument, and — and I don’t think we’ve said that a state has to tackle every aspect of the problem or else it can’t do anything.

Under questioning from Justice Gorsuch, Shaffer conceded that the majority of the content on his clients’ sites was obscene for minors and that the government “unequivocally” had a compelling interest in protecting minors from that material.

Aaron Nielson argued on behalf of Texas and dismissed the Free Speech Coalition’s privacy concerns, reminding the Court that the Age Verification Providers Association could verify age using biometrics.

Oral argument transcript:

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

the Age Verification Providers Association could verify age using biometrics
Wait, the argument is that there’s a problem with creating an online “paper trail” related to exercising the First Amendment, and this group is arguing they should use biometrics instead of a CC?!? Wouldn’t it just be easier to tattoo “666” on my forehead?

    MattMusson in reply to GWB. | January 17, 2025 at 8:35 am

    This is really about whether people can surf the internet anonymously. If they require age verification, they need to know exactly who you are.

All this makes me think about is how Pornhub is doing since they took a “moral” stand against this….lol

Derbyshire was against the public display of the 2015 SI swimsuit issue cover because it revealed the “foothills of the mons veneris.”

It’s said that a BS differs from a BA not in a knowledge of science but in an ignorance of Latin.

    CPOMustang in reply to rhhardin. | January 16, 2025 at 7:18 pm

    OMFG. PLEASE tell me that’s a real quote. I need to find a way to use that in polite conversation.

      rhhardin in reply to CPOMustang. | January 16, 2025 at 7:43 pm

      “…Second news story: The Sports Illustrated annual swimsuit issue features, on its cover, a young model in a skimpy bikini, the bottom part of which she is holding down to expose the foothills of the mons veneris.

      There has been some minor fuss over this. The National Center on Sexual Exploitation wants retailers to remove the magazine from public display shelves and checkout lines. The cover picture is pornographic, they say.

      They have a point, and I personally don’t think the thing should be on open display where kids can see it.

      That aside, though, I always wonder who the swimsuit issue is for. I know who it used to be for. It used to be for adolescent boys and lonely adult men to masturbate to. I can’t believe that’s still the case, though.

      For one thing, why would any masturbator shell out $4.99 for a still picture of a bikini model when there are action videos of actual sexual congress in every conceivable configuration available for free on YouPorn?

      For another thing, my impression is that the rising generation is not very interested in sex. My acquaintance with adolescent boys, admittedly rather limited, suggests to me that they are much too busy playing Call of Duty and watching Game of Thrones to waste time dallying with Mrs Palm and her five lovely daughters….

      https://www.johnderbyshire.com/Opinions/RadioDerb/2015-02-14.html

Pornhub needs articles like Playboy, for Texas subscribers.

Anyone have a link to these oral arguments? I personally love watching oral arguments.

There are safeguards aplenty available to any parent who needs them– safeguards available without giving the government control over what adults choose to look at.

This is a power grab of the left trying to get control over what ALL see.

Do not let them, whatever guise they take, from feminist scold to puritanical ‘protector,’ have this.

The first amendment exists to protect the language and expression you hate. Remember that.

    healthguyfsu in reply to Azathoth. | January 16, 2025 at 6:54 pm

    This is true and if the site is not in the US they do not have to comply

    rhhardin in reply to Azathoth. | January 16, 2025 at 7:50 pm

    My impression is that the laws come from the busybody half of the right, also responsible for very strict abortion laws. Probably it’s legal and it just has to be defeated by referendums or electoral defeats.

      Azathoth in reply to rhhardin. | January 17, 2025 at 8:33 am

      As with most things, your impressions are wrong.

      They stem from the actions of authoritarian collectivists whose only telltale identifier is the compulsion to add ‘social’ to whatever they attach themselves to –social justice, social science, social conservatism.

      They are not seeking to protect children –they’re trying to grab back the reins they had on free speech which, in truth, are only slipping from their grasp now, our speech is still not free and will not be as long as we give any credence to those, like Michael Knowles, who believe that the state based restrictions on our speech that started manifesting themselves as the social gospel adherents were morphing into progressives and social conservatives were a good thing.

      They were not. They were fetters designed by the forces of authoritarian collectivism to destroy this country and the ideals that created it.

        CommoChief in reply to Azathoth. | January 17, 2025 at 9:52 am

        To be fair there is absolutely a strain of muscular Christianity on the right that seeks to impose their version morality on society. This seems to be a case similar to the coalition of bootleggers and Baptists that kept States/Counties ‘Dry’ after prohibition ended. Same for gambling where a.similar alliance of existing gambling interests and those morally opposed to gambling cooperate to successfully oppose loosened gambling/gaming in some States.

          Azathoth in reply to CommoChief. | January 17, 2025 at 1:32 pm

          They are not ‘on the right’.

          They hide themselves within the right, pursuing collectivist goals under the guise of faith.

          They do not pursue Christian morality, they pursue power

The other way to.tackle the issue to require the devices themselves to come from the factory with an ‘age block’ restriction. The age block setting would restrict content to that deemed ‘appropriate’ for minors under 18 years. This could be designed to apply across all platforms not just ‘porn’ sites (YouTube has age restrictions).

At purchase an adult could have the settings disabled by the store. Now there’s no need for any checking age and ID for access to materials across the entire web. Parents concerned about current devices could take their device to the store and have the age block retroactively applied.

That’s the least restrictive method; at purchase v every access attempt. This also moots any worry about some digital naughty list being collected with ID b/c it would apply for all content that every content site that offers up content for adult viewers like YouTube or streaming services like HBO Max.

    healthguyfsu in reply to CommoChief. | January 16, 2025 at 6:55 pm

    Possibly but the restricted sites would have to deploy a positive marker flag and many won’t cooperate.

    Milhouse in reply to CommoChief. | January 16, 2025 at 6:59 pm

    What “devices”? All computers and phones?! Talk about intrusive!

      henrybowman in reply to Milhouse. | January 16, 2025 at 7:45 pm

      It’s precisely equivalent to the “VR chip” installed in all TVs decades ago.

      CommoChief in reply to Milhouse. | January 16, 2025 at 7:47 pm

      Doing a one time front end at purchase disable of the ‘age block’ is far and away LESS intrusive than adults being required to ‘show ID’ each time they access content that minor children are prohibited from viewing. It creates a SINGLE instance of asking for proof of age.

      The approach I propose also has the effect of eliminating any stigma or risk of some sort of data breach of ‘digital ID Card’. It creates one across the board for any/all content deemed ‘unsuitable’ for minor children. Finally it removes any potential ‘chilling effect’ of adults hesitant to exercise their own prerogative to view whatever lawful content they wish without the Gov’t or big tech demanding their ID every instance.

        George_Kaplan in reply to CommoChief. | January 16, 2025 at 8:46 pm

        Sorry but that’s simply not viable. First you’re ignoring multi-user devices e.g. a family PC. Then you’re ignoring the fact that Texas would be dictating to device sellers what they must include in their devices. And then you’re assuming people don’t just buy out of state. If you want a model X device and buy through Amazon – not based in Texas, will you get the Texas version or the non-Texas version of the device?

          healthguyfsu in reply to George_Kaplan. | January 16, 2025 at 10:42 pm

          I think he is assuming people that want to keep this stuff from their kids will opt in to purchasing the restrictable tech.

          CommoChief in reply to George_Kaplan. | January 17, 2025 at 7:00 am

          I was speaking more broadly about a National policy. However, TX can demand certain certain features on electronic devices the same way CA has demanded all sorts of consumer products be compliant with CA law.

          The point I am making is putting it on the device is less intrusive to consumers. In TX or at least in El Paso the schools issue laptops to the students which decreases need for children access to single CPU at home. Libraries have CPU. Most cell phones have internet access sufficient for non academic work during summer break.

          The approach I propose here allows protection for minor children while also offering the least invasive and least intrusive way to accomplish that goal.

          Frankly, I suspect the secondary goal of the folks pushing for a ‘digital ID’ for ‘porn’ isn’t about shielding children but to discourage adults. Why single out ‘porn’? Why not go across the board to HBO streaming shows with tons of violence, adult situation, nudity and sexual content like ‘Game.of Thrones’? IMO this reveals their actual goal; making access to ‘porn’ for adults painful in order to suppress consumption.

          henrybowman in reply to George_Kaplan. | January 18, 2025 at 12:55 am

          “Then you’re ignoring the fact that Texas would be dictating to device sellers what they must include in their devices.”
          Yeah, no state can do that *cough*California-emissions*cough*

    Azathoth in reply to CommoChief. | January 17, 2025 at 8:39 am

    The problem is the word ‘require’.

    The state doesn’t get to require things that limit speech, expression, religion or assembly.

    This country would do itself a great service by forcefully enforcing the ‘NO LAW’ provisions of the Bill of Rights.

    These programs already exist. Buy them and use them to protect YOUR kids. The second you try to force ME to do something so YOU don’t have to bother parenting your own children is the moment you infringe on MY rights and violate the Constitution.

      CommoChief in reply to Azathoth. | January 17, 2025 at 9:40 am

      While in the abstract I agree I am offering up a less intrusive proposal than what TX and a.few other States are doing with this sort of thing. Let’s also keep in mind that Gov’t at all levels, unfortunately does intrude into 1A freedoms every day.
      1. Broadcast licenses come with conditions about content. Limits expression.
      2. Freedom of association is interfered with when a business is unable to refuse service for any/no reason at all to include discrimination.
      3. Yelling a diatribe of ‘blue’ language at a public park in front of children is gonna result in an arrest.

      As someone with very strong libertarian leanings but who also recognizes that rights can conflict and that part of the price for living in a society is accepting some minor, minimally intrusive restrictions on individual liberty I think my alternative proposal is far better than the anti liberty proposal of TX and other States.

        Azathoth in reply to CommoChief. | January 17, 2025 at 1:55 pm

        What you offer up is more intrusive.

        It’s further state control of what the people are allowed to see–including having to ask permission to have the censor program shut off.

        So not only is their free speech curtailed, they have to beg the state for shreds of it

        Weirdly, your proposal is worse than what Texas and other states are doing –because right now you can avoid those laws with a VPN.

        No ‘society’ is worth infringing on basic liberty.

        Because it’s never necessary, it’s always a power grab.

          CommoChief in reply to Azathoth. | January 17, 2025 at 3:15 pm

          My proposal is for a single instance at purchase of device for age verification. That unlocks the age restriction on content across EVERY platform. B/C .it applies across EVERY platform there isn’t the same ‘porn stigma’ associated with this act.

          It works to remove any chilling aspect for 1A activity and precludes the building of an ID check for porn naughty list by either corporations to build and for gov’t to acquire b.c the ID check for age is eliminated.

          In what sense is this MORE intrusive than what TX and some other States are doing? VPN use is akin to hiding your behavior and soon the bureaucracy and ‘Sister Betty Lou better than you’ types will demand VPN be done away with.

          Every society infringes on basic liberty b/c.no individual’s liberty is unlimited. My liberty to fire off rounds ends at your backyard; I gotta put up a backstop. In many States I couldn’t even discharge a firearm within 100 yards of a.dwelling regardless of of the direction of impact. Noise ordinances, leash laws, traffic and speed limits all restrict my liberty.

Literally a pop-up saying “I am 18+” that you click to get into the site is all that is needed. Most porn sites have done nothing to prevent minors from using them. No site has actually been prosecuted as far as I know.

    Milhouse in reply to geronl. | January 16, 2025 at 7:01 pm

    No, it is not all that is needed, according to Texas. If that were all Texas required there wouldn’t be a court case. The Texas law requires all users to supply ID, which poses a significant chilling effect on adults exercising their first amendment rights.

    henrybowman in reply to geronl. | January 16, 2025 at 7:49 pm

    I prefer the logic exhibited at Oglaf:

    PLEASE CLICK ON THE BUTTON BELOW TO CERTIFY YOU’RE OVER 18. OF COURSE, IF YOU ARE UNDER 18. YOU CAN’T LEGALLY CERTIFY ANYTHING. SO IF YOU’RE A MINOR, PLEASE GET A PARENT OR GUARDIAN TO CLICK THE BUTTON WHICH SAYS YOU AREN’T. THANKYOU.

Might also restrict some classical pianists like Yuja Wang. They’re up there banging away and you have little else to look at. This can’t be good for kids

https://youtu.be/ucEoszfu9_E?t=179

What ever happened to the proposal to replace the “.COM” identifier with “.PORN”?

I think that limiting easy access for minors to pornography is a noble and worthy cause; at the same time I am opposed the Texas solution of giving Porn sites my driver’s license number et al.

I would hope that the Court finds this solution too burdensome, but I also hope Texas continues to pursue some method to accomplish their goal.

    henrybowman in reply to Hodge. | January 16, 2025 at 8:24 pm

    I think the actual existing TLD is XXX, but ironically nobody uses it.

    The whole vanity TLD goldrush of 1997 and following was a bad solution looking for the wrong problem. Very few TLDs from that time on have any actual value, and are shunned by serious enterprises and organizations. I spend effort blocking all mail from a number of these vanity TLDs from my hosted server (e.g., best, top, host, win, news, tech, rest, and more arrive every week.), because ALL mail arriving from them is either spam, clickbait, or fraud.

Computers, once well started, were made for porn, thanks to engineers. A nude lady on a stool printed in BCD was coming off IBM 7090 printers in 1963 (actually 1401 printers, which handled the print/punch output tape of the 7090). The first color display I saw in the late 70s within two days had a nude lady displayed on it. That was all before inappropriate behavior.

This sounds like a problem that should be an issue for parents to deal with, not for busy bodies at the government.

I’m on the side of free speech, here. My state of Tennessee is doing the same thing.

“For user privacy, the “commercial entity that performs the age verification . . . or a third party that performs the age verification . . . may not retain any identifying information of the individual.”

We know this is possible, because NICS does it every day.
Bwa ha ha, I’m kidding, I’m kidding, don’t kill me!

Its not illegal for minors to use VPN, and place their internet address in different state.

George_Kaplan | January 16, 2025 at 8:50 pm

So basically this comes down to an argument as to whether porn is considered free speech, and whether kids have a right to free speech?

The reality is with porn being so prolific these days you can stumble over content unintentionally unless you limit the sites you access and the searches you do.

Given age verification on sites already exists e.g. Steam, asking porn users to confirm their age is a nothingburger.

    Milhouse in reply to George_Kaplan. | January 17, 2025 at 1:44 am

    No, it doesn’t come down to kids’ free speech rights (which they definitely have, but less so than adults). The case is about adults’ free speech rights.

    Age verification requiring a credit card number, or a government issued ID, is intrusive, and many people will be scared to identify themselves to such sites, let alone provide a credit card number.

      Heck, I won’t even buy things from some online sites because it means my information is out there – from address to email to phone number to CC.

      CommoChief in reply to Milhouse. | January 17, 2025 at 9:45 am

      Yep. The not so ‘hidden’ agenda here with demands for age verification on each instance of access is to discourage use/site.traffic. These sorts of requirements create a ‘stigma’, introducing a reasonable fear of loss of privacy and that’s the real goal to chill 1A activity that is otherwise lawful.

Lust is only one of the animal sins, but it still does a lot of damage.

    rhhardin in reply to gibbie. | January 16, 2025 at 9:46 pm

    “The priest of religions heads the procession, holding in one hand a white flag, the sign of peace, and in the other a golden device depicting the male and female privy parts, as if to indicate that these carnal members are most of the time, all metaphor apart, very dangerous tools in the hands of those employing them, when manipulated blindly to different and conflicting ends, instead of engendering a timely reaction against that well-known passion which causes nearly all our ills.” – Lautreamont

    Hodge in reply to gibbie. | January 17, 2025 at 9:33 am

    …if the site is not in the US they do not have to comply

    True, but in order to understand what the ‘actress’ is moaning you have to be a cunning linguist…

There’s a very good phenomenology of Eros as an appendix to Levinas “Totality and Infinity” that novelists would do well to read before writing awful love scenes. I am informed by females that it’s a male point of view but still…

Perhaps it could even be used as scholarly filler like an article in Playboy, exempting a site.

Does this law apply to paintings and statues in museum, how about sex ed classes in public schools and drag shows where children attend?

Teens know more about tech than politicians. The age verification is easily defeated. The law is only for appeasing parents.

I”m with pornographers on this one. We don’t need ‘well meaning idiots’ who think they’re going to stop kids from getting around any of these restrictions making one more hackable data-base so data-thieves can steal their information and wreck their lives.

I thought the right gave up on this idiotic ‘think about the children’ fake morality nonsense back in the 1980s when Dee Snyder, Frank Zappa and John Denver all mocked the Senate into submission.