The Supreme Court today upheld a Texas law that requires age verification on porn sites, finding that the state's age-gating law doesn't violate the First Amendment.
The 6–3 decision delivered by Justice Clarence Thomas rejected an appeal by the Free Speech Coalition, an adult-industry lobby group. Pornhub disabled its website in Texas last year because of the state law.
The Supreme Court's conservative majority decided that the law should be reviewed under the standard of intermediate scrutiny "because it only incidentally burdens the protected speech of adults." The law "survives intermediate scrutiny because it 'advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests,'" the court said.
The majority said the law's burden on adults is incidental because adults have no First Amendment right to avoid age verification. "The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is obscene from their perspective," the ruling said. "That power 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 such speech without first submitting proof of age."
The court also said the law applying to online material isn't significantly different from older laws applying to non-digital access:
H. B. 1181 furthers Texas's important interest in shielding children from sexual content and is adequately tailored to that interest. States have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults' right to avail themselves of such material. H. B. 1181 simply adapts this traditional approach to the digital age. The specific verification methods that H. B. 1181 permits—government-issued identification and transactional data—are also plainly legitimate. Both are established methods of verifying age already in use by many pornographic websites and other industries with age-restricted services.
Kagan’s dissent
The majority rejected the argument that "other means of protecting children are more effective and that children are likely to encounter sexually explicit content on other websites subject to H. B. 1181's requirements." It said that "intermediate scrutiny does not require States to adopt the least restrictive means of pursuing their interests, or avoid all underinclusiveness."