The Supreme Court on Wednesday seemed open to upholding a Texas law requiring age verification for accessing pornography online, though the debate turned murkier on the standard of scrutiny that should be applied to it and similar laws in more than a dozen states.

The case, Paxton v. Free Speech Coalition, centers on First Amendment concerns, as petitioners representing the pornography industry say the law infringes on the privacy rights of adults due to the requirement to input either government IDs or financial information to access pornographic websites in the Lone Star State. During oral arguments, several conservative justices signaled skepticism about arguments from the adult entertainment industry that the law unduly burdens free speech.

Chief Justice John Roberts emphasized that internet pornography has evolved since earlier rulings protected sexually explicit content. “The nature of the pornography, I think, has also changed in those 35 years,” Roberts said. He questioned whether the Supreme Court should revisit its standards for judicial review in light of these developments.

Justice Samuel Alito echoed this concern with pointed remarks about the industry’s practices. Referring to Pornhub, a major plaintiff in the case, Alito asked, “What percentage of the material on that is not obscene? Is it like the old Playboy — you have essays on there by Gore Vidal and William F. Buckley Jr.?”

Debate over judicial standards

The case hinges on whether the Texas law should face strict scrutiny, the highest level of judicial review upon which most laws fall, or a less rigorous rational-basis test.

Principal Deputy Solicitor General Brian Fletcher, representing the Biden administration, expressed no viewpoint on whether the law should be upheld or struck down but argued for strict scrutiny to be applied, stopping short of supporting the adult industry’s position outright. Fletcher asked the Supreme Court to send the case back to lower courts for further review rather than ruling on whether the law should stand or be struck down.

Justice Sonia Sotomayor was one of the few justices who appeared sympathetic to the adult entertainment industry’s argument. She noted that the Supreme Court has historically applied strict scrutiny in cases involving speech regulation.

“We have at least five precedents that have answered that question directly,” Sotomayor said, emphasizing the difficulty of overturning such well-established standards.

Although Justice Amy Coney Barrett appeared skeptical of the pornography industry’s arguments to strike down Texas’s law, she also acknowledged that she shared similar concerns as Sotomayor and Justice Brett Kavanaugh, who questioned how they could rule in favor of the law while avoiding changing the standard of strict scrutiny.

Justice Elena Kagan expressed concerns about issuing a broad ruling for either side in the case, saying there could be “possible spillover dangers either way.”

“You treat a clearly content-based law as not requiring strict scrutiny and, all of a sudden, you start seeing more content-based restrictions that don’t have to satisfy strict scrutiny,” Kagan said.

Justices question effectiveness of alternatives

Justice Clarence Thomas probed deeper, asking whether age-verification requirements could ever be constitutional. Derek Shaffer, representing the adult entertainment industry, avoided the question, instead focusing on how the law allegedly infringes on adults’ access to protected speech, while also suggesting that content-filtering personal devices should be sufficient for families to protect their children from online smut.

However, Barrett expressed skepticism about the effectiveness of content filtering as an alternative to state regulation.

“Kids can get online porn through gaming systems, tablets, phones, computers,” Barrett said. “Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.”

Shaffer maintained that adults in Texas seeking to view legal pornography “should have confidentiality that is legally assured,” adding, “You have nothing from Texas in this way … or, for that matter, to actually be efficacious that it meaningfully protects minors across the board.”

Alito challenged Shaffer’s defense of the industry’s reliance on at-home filtering solutions, asking, “Do you know a lot of parents who are more tech-savvy than their 15-year-old children? Come on. Be real.”

Most state age-verification laws have loopholes that adult users can go through to avoid providing confidential and identifying information about themselves. For example, an online user could merely download an application on their devices for a virtual private network to get around state bans. Notably, the arguments on Wednesday did not steer toward any discussion about these loopholes.

Balancing interests

Texas Solicitor General Aaron Nielson defended the law, arguing that it protects minors without infringing on adults’ rights. He cited studies linking early exposure to pornography with negative mental health outcomes and emphasized that adults could still access explicit material through third-party verification systems.

Opponents of the law argue that it imposes unconstitutional burdens on adult access to lawful material and jeopardizes user privacy.

“Texas’s age-verification law robs internet users of anonymity, exposes them to privacy and security risks, and blocks some adults entirely from accessing sexual content that’s protected under the First Amendment,” Lisa Femia, staff attorney for the Electronic Frontier Foundation, previously told the Washington Examiner.

A federal judge in Texas blocked the law using strict scrutiny, the toughest legal test, which requires a law to serve a critical government purpose and be very narrowly focused. However, an appeals court overturned that decision, saying the law should face the much easier rational-basis test, which only needs a legitimate state purpose and is usually upheld.

Supreme Court justices now have to decide which test applies and may either send the case back to the lower court or decide the issue themselves to resolve it more quickly.

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Broader implications

The case comes amid a wave of similar laws passed in 19 states, reflecting growing bipartisan concern over minors’ access to pornography. A ruling in favor of Texas could set a precedent allowing states more leeway in regulating online content, particularly when it involves minors.

The Supreme Court is expected to issue a decision by the end of its term in June.