WASHINGTON—The conservative majority on the U.S. Supreme Court ruled in favor of the state of Texas today, affirming that a controversial age verification law targeting adult entertainment platforms was constitutional despite a federal district court initially finding the state law, House Bill (HB) 1181, facially unconstitutional.
Friday’s high court decision was released among other major decisions of the court, signaling the end of the current Supreme Court term. In context, the decision allows the state of Texas to enforce HB 1181 under a similar ruling made by the ultraconservative U.S. Fifth Circuit Court of Appeals. The Fifth Circuit in this case, Free Speech Coalition et al. v. Paxton, found HB 1181 constitutional by applying a much lower standard of scrutiny of judicial review. The standard is typically strict scrutiny on issues about civil liberties and the First Amendment. Unfortunately, the high court characterized age verification laws as a “reasonable regulation” in protecting minors from sexual content.
“As it has been throughout history, pornography is once again the canary in the coal mine of free expression,” said Alison Boden, executive director of adult industry trade group the Free Speech Coalition (FSC). FSC was the top-line plaintiff along with the parent companies of some of the world’s largest adult entertainment platforms, like Pornhub.com and XVideos.com.
“The government should not have the right to demand that we sacrifice our privacy and security to use the internet,” Boden added. “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.”
A spokesperson for FSC indicated that an additional statement from all of the stakeholders, including the American Civil Liberties Union (ACLU), which served as counsel for the trade group and the porn companies, will be released later today.
“HB 1181 simply requires adults to verify their age before they can access speech that is obscene to children,” the high court’s decision reads. “The statute advances the State’s important interest in shielding children from sexually explicit content. 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 judgment of the Court of Appeals for the Fifth Circuit is affirmed.”
Justice Clarence Thomas drafted the opinion for the majority of the court, which included the other five conservative justices. The three liberal justices, led by Justice Elena Kagan, dissented, indicating that HB 1181 and age verification legislation in its various forms violate civil liberties.
“Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience,” writes Kagan in the dissent. “But the First Amendment protects those sexually explicit materials for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children.
“That is what we have held in cases indistinguishable from this one. And that is what foundational First Amendment principles demand,” Kagan added.
Corey Silverstein, a First Amendment attorney specializing in adult industry clients, told AVN that he is “livid” with the application of such a lower standard of scrutiny.
