Justices grapple with protecting minors without infringing adults’ rights to online porn

WASHINGTON (CN) — Growing concerns over children’s access to pornography led the Supreme Court on Wednesday to consider a new era of parameters for states looking to shore up protections against obscene material.

During a two-hour oral argument session, the justices voiced concerns about reconciling decades-old rulings with new technological advancements.

“One of the things that’s striking about the case is the dramatic change in the technology of brick-and-mortar stores to the access to pornography, which also seems to be dramatically different from what it was 40 years ago,” Chief Justice John Roberts, a George W. Bush appointee, said.

Texas says readily available hardcore porn has created a public health crisis for kids. In 2023, the Lone Star State enacted House Bill 1181, requiring commercial websites with over one-third of content containing sexual material to use age-verification checks. The covered websites must also display a health warning condemning their content as harmful.

Since the law took effect, Pornhub has suspended its services in Texas. The website faces a $1.6 million lawsuit for infractions, each carrying a $250,000 fine.

A lower court preliminarily blocked the law from taking effect, but the Fifth Circuit lifted the order as to the age verification requirement. After initially refusing to take emergency action, the Supreme Court took up the case to review this term.

Some justices seemed inclined to send the case back to the appeals court Wednesday but quibbled over what changes the Fifth Circuit needed to make in its analysis. At issue was what level of scrutiny applied when content can be obscene to children but not obscene to adults.

Free Speech Coalition, an adult entertainment trade association, argued the law should be evaluated for First Amendment violations under strict scrutiny — the most stringent form of review. The porn producers claim the law is overly burdensome for adults, chilling their right to free speech.

“There is a broader antiporn interest in preventing willing adults from accessing this content,” Derek Shaffer, an attorney with Quinn Emanuel representing the association, said. “And [Texas] wants to make it more difficult. They want to make it costlier. They want to make it chilling.”

Justice Sonia Sotomayor, a Barack Obama appointee, said at least five precedents required this outcome, suggesting the court vacate the Fifth Circuit’s analysis under rational basis review — the least stringent standard.

Several justices signaled a need for change, however. Roberts said that technological advancements sometimes force the court to abandon precedent. Roberts said a lot has changed since 1989 when the court first ruled that the government could ban indecent and obscene interstate commercial phone messages in Sable Communications of California v. FCC .

“In that period, the technological access to pornography has exploded,” Roberts said. “It was very difficult for 15-year-olds to get access to the type of things that are available with a push of a button today. And the nature of pornography, I think, has also changed in those 35 years. And so are those the sort of developments that suggest revisiting the standard of scrutiny.”

Strict scrutiny seemed to be too rigid for some justices. Justice Amy Coney Barrett, a Donald Trump appointee, said the traditional understanding of strict scrutiny doesn’t leave a whole lot of room for Texas to protect minors.

The federal government said it had previously pushed for intermediate scrutiny in similar cases. Brian Fletcher, principal deputy solicitor general at the Justice Department, suggested the court make it easier for states to satisfy strict scrutiny in this context.

“Normally, the government does not have a legitimate, much less a compelling interest in restricting speech based on its content,” Fletcher said. “That’s a fundamental principle. Here, though, there’s a specific category of speech defined by its content, speech that is obscene to minors, where everyone agrees that the state not only has a legitimate interest but a compelling interest in making sure that minors do not access that speech that is defined by its content.”

Under that theory, age verification laws must be narrowly tailored to the government’s interest in protecting minors. The government suggested that the court determine this tailoring based on whether the law requires age-gating of the entire website or only protected content, the methods of verification allowed and if the law appropriately targets minors who it would impact most.

Several justices floated an age-verification carveout, finding that content discrimination doesn’t trigger strict scrutiny if the law involves age verification. But Justice Elena Kagan, an Obama appointee, cautioned that this outcome risked relaxing strict scrutiny in other places and evaluating clearly content-based laws under a lower standard.

By the end of the argument, there wasn’t a consensus on what new lines the justices might draw. Justice Ketanji Brown Jackson, a Joe Biden appointee, pushed her colleagues to take an easier route.

“We don’t need a new set of principles or tests,” Jackson said. “We have a test. The test is strict scrutiny.”

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