On the last day of its 2024 term, the U.S. Supreme Court ruled in a 6-3 decision along ideological lines to uphold a Texas age verification law aimed at protecting children from online obscenity.
In his majority opinion affirming the Fifth Circuit decision, Justice Clarence Thomas declared that “First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective.”
“That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age,” he wrote.
Texas passed a law in 2023 mandating companies that disseminate obscene sexual content online to children under 18 years old to verify the age of their users before allowing them access to that content.
The statute was careful to note that the law also applied to content posted on social media platforms, where “more than one-third of which is sexual material harmful to minors.” Legislators also ensured the law required entities to publish health warnings on published content and allows for the Texas attorney general to take action against probable offenders, which, if found guilty, would be subject to a civil penalty.
“The statute advances the State’s important interest in shielding children from sexually explicit
content,” Thomas wrote. “And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identification and sharing transactional data.”
The Free Speech Coalition, a self-proclaimed “trade association” sent in to lobby for the porn industry, sued over the requirement, claiming that it “violated free speech rights and is overbroad and vague.”
A district court judge quickly intervened with a preliminary injunction that halted the law before it went into effect. The 5th Circuit Court of Appeals, however, allowed the law to take effect in November 2023.
The Free Speech Coalition attempted to secure an emergency appeal from the high bench in April 2024, but was denied until justices could rule on the constitutionality of the law in their 2024 term.
The majority led by Thomas concluded that “Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights.”
“History, tradition, and precedent recognize that States have two distinct powers to address obscenity: They may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children,” Thomas wrote, noting that regulation has extended to “internet-based speech.”
The dissent, as Thomas pointed out in the majority opinion, however, “expresses surprise that obscenity for minors is ‘only partially’ protected speech for adults.”
“It would be perverse if we showed less regard for in-person age-verification requirements simply because their legitimacy is so uncontroversial that the need for a judicial decision upholding them has never arisen,” Thomas continued.
According to the majority argument, the “need for age verification online is even greater” than in-person purchasing of sexual material.
“Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages. Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected,” Thomas warned.
As Kevin Roberts, president of The Heritage Foundation, and Terry Schilling, president of the American Principles Project, dually argued in The Federalist in January, a Supreme Court ruling “upholding Texas’ right to protect children by requiring pornographic websites to make sure their users are adults” is “the bare minimum to combat a global porn industry exploiting the innocence of American children to the tune of billions per year in revenue.”