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 lawThe 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:
CLICK HERE FOR FULL VERSION OF THIS STORY