Supreme Court Justices on Wednesday were divided over a challenge to a Texas law that requires users to undergo an invasive age verification process before accessing pornography sites, specifically on the standard of scrutiny that should be applied, reports SCOTUSblog.
In the case, Paxton v. Free Speech Coalition, the ACLU and lawyer Quinn Emanuel argue that adults have a First Amendment right to access information online, including sexual content, and cannot burden adult access to sexual speech in an effort to protect kids.
"Efforts to childproof the internet not only hurt everyone's ability to access information but often give the government far too much leeway to go after speech it doesn't like — all while failing to actually protect children," said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy, and Technology Project. "Pornography is historically the canary in the coal mine when it comes to censorship. Allowing the government to restrict access to sexual content will inevitably lead to more censorship and a more restricted internet for everyone."
Justices heard two hours of debate Wednesday on the case, but it wasn't clear whether a majority was ready to uphold a lower court's ruling allowing the Republican-led state's age-verification mandate. The lower court decided that the policy likely did not violate the U.S. Constitution's First Amendment safeguard against government abridgment of speech.
The justices seemed to agree that states can try to keep adult material from minors. But they debated whether the important free speech implications at issue required the New Orleans-based 5th U.S. Circuit Court of Appeals to apply a stricter form of judicial review to the 2023 Texas law than the one it actually used that gave deference to legislators.
Some justices questioned the effectiveness of content-filtering.
"Kids can get online porn through gaming systems, tablets, phones, computers," conservative Justice Amy Coney Barrett told Derek Shaffer, the lawyer arguing for the Free Speech Coalition. "Let me just say that content-filtering for all those different devices — I can say from personal experience — is difficult to keep up with. And I think that the explosion of addiction to online porn has shown that content-filtering isn't working."
Texas in a legal filing said that children, through smartphones and other devices, have easy access to an "avalanche of misogynistic and often violent smut" including "graphic depictions of rape, strangulation, bestiality and necrophilia."
"Do you dispute the societal problems that are created both short-term and long-term from the rampant access to pornography for children?" conservative Justice Brett Kavanaugh asked Shaffer.
The issue, Shaffer responded, is bigger than pornography alone, highlighting the current debate over "whether all sorts of things involving screens and the internet and social media and interactions over the internet, whether those are unhealthy for children."
Liberal Justice Ketanji Brown Jackson, questioning Texas Solicitor General Aaron Nielson, asked, "How far can a state go in terms of burdening adults in showing how old they are?"
"It seems to me that you're conceding that at some point a state would not be able to require an adult to jump through a million hoops to provide their age," Jackson told Nielson.
Liberal justice Elena Kagan expressed concern about applying a watered-down version of the most stringent form of judicial review, known as strict scrutiny, to assess this law. Kagan said that "you relax strict scrutiny in one place — and all of a sudden strict scrutiny gets relaxed in other places."
Information from Reuters was used in this report.
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