Texas can require porn websites to verify users’ ages, Supreme Court rules

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Texas’ law requiring Pornhub and other adult websites to verify users’ ages is constitutional and can remain in effect, the U.S. Supreme Court ruled on Friday.

The case stems from a 2023 law, HB 1181, that required websites to verify that a user is over the age of 18 if more than one-third of their content is considered harmful to minors. A group of adult entertainment websites sued, arguing this violated free speech and privacy protections.

Texas countered that the state had a right to protect children with what Solicitor General Aaron Nielson framed as “simple, safe and common” restrictions.

While the Supreme Court justices seemed divided on the free speech issues, a 6-3 majority of the Court ultimately sided with Texas, finding that requiring age verification “is within a State’s authority to prevent children from accessing sexually explicit content.”

The 2023 law “is an exercise of Texas’s traditional power to prevent minors from accessing speech that is obscene from their perspective,” Justice Clarence Thomas wrote in the majority’s opinion. “To the extent that it burdens adults’ rights to access such speech, it has ‘only an incidental effect on protected speech,’ making it subject to intermediate scrutiny.”

The Court’s three liberal justices dissented, arguing that the law should have been held to the higher standard of strict scrutiny, the most stringent level of legal review used in cases related to fundamental rights, such as freedom of speech. The dissenting judges also argued that while states have a “compelling interest” in protecting children from obscene speech, doing so sometimes impeded the right of adults to access that speech.

In her dissent, which was joined by Justices Sonia Sotomayor and Kentanji Brown Jackson, Justice Elena Kagan said that Texas’ law might well have passed strict scrutiny and used the least restrictive means to achieve its goals.

“But what if Texas could do better — what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech HB 1181 covers?” Kagan wrote. “The State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary.”

Texas’ law requires people visiting websites “more than one-third of which is sexual material harmful to minors” to show they are over 18 by submitting digital identification, uploading government-issued identification or by using a “commercially reasonable method,” such as their banking information. Neither the website nor the party performing the verification can retain identifying information. Sites that violate the law face fines of up to $10,000 a day.

The law was passed amid a broader push in Texas and other states to prevent children from being exposed to sexual materials, which continued this legislative session. Friday’s ruling could have implications for more than a dozen states that have passed similar laws.

It was not the first time that these Texas bills have tested the boundaries of free speech protections: In two cases, the Supreme Court has ruled that laws aimed to prevent the distribution of obscene materials to minors unconstitutionally restricted free speech.

Attorney General Ken Paxton celebrated the ruling Friday, calling it a “major victory for children, parents and the ability of states to protect minors from the damaging effects of online pornography.”

“Companies have no right to expose children to pornography and must institute reasonable age verification measures,” Paxton said. “I will continue to enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials.”

Civil liberties groups decried the decision as a rollback of free speech protections.

“Today’s ruling limits American adults’ access to only that speech which is fit for children — unless they show their papers first,” Bob Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression, said in a statement. “Data breaches are inevitable. How many will it take before we understand the threat today’s ruling presents? Americans will live to regret the day we let the government condition access to protected speech on proof of our identity.”

The Free Speech Coalition, a legal advocacy group representing the adult film industry, responded to Friday’s ruling by arguing pornography is the “canary in the coal mine of free expression.”

“The government should not have the right to demand that we sacrifice our privacy and security to use the internet,” Executive Director Alison Boden wrote in a statement. “This law has failed to keep minors away from sexual content yet continues to have a massive chilling effect on adults. The outcome is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”

Critics of Texas’ law raised privacy concerns and said it could make it dangerous for adults to access legal content. Critics also argued HB 1181 was overly broad and could apply to websites providing resources on reproductive health, sex education and LGBTQ+ issues.

“The legislature claims to be protecting children from sexually explicit materials, but the law will do little to block their access, and instead deters adults from viewing vast amounts of First Amendment-protected content,” wrote Cecillia Wang, national legal director of the American Civil Liberties Union, which represented the Free Speech Coalition in court.

The day before the law was set to go into effect in 2023, a U.S. district judge put it on hold, granting a request for a temporary injunction filed by the Free Speech Coalition.

Federal District Judge David Alan Ezra, a Ronald Reagan appointee, said in granting the injunction that the law would allow the government “to peer into the most intimate and personal aspects of people’s lives,” imposing a chilling effect on constitutionally protected speech.

The state appealed to the 5th U.S. Circuit Court of Appeals, which allowed the law to take effect. In March 2024, the appeals court upheld most of the law, but struck down a requirement that these websites post a “health warning,” saying that pornography is addictive and weakens brain function.

The Supreme Court agreed to take up the case in July 2024 and heard arguments earlier this year on whether the appeals court applied proper legal reasoning in upholding age-verification.

The pornography websites’ claims attracted support from a wide cross-section of advocacy groups, from librarians to libertarians, who cited concerns about the ripple effects of Texas’ law. The Biden administration also submitted an amicus brief in support of overturning the law.

Meanwhile, some websites, including Pornhub, have suspended services in Texas, saying they are unable to comply with the law. In a statement that greets users who try to access the website in Texas, Pornhub says that “providing identification every time you want to visit an adult platform is not an effective solution for protecting users online, and in fact, will put minors and your privacy at risk.”

“As we’ve seen in other states, such bills have failed to protect minors, by driving users from those few websites which comply, to the hundreds of thousands of websites with far fewer safety measures in place, which do not comply,” the statement says.

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