Like Utah, Texas in 2023 passed a law requiring pornography websites to verify users’ ages and block children from seeing pornographic material. But it is the Texas law that Utah Sen. Mike Lee and 22 of his colleagues are saying the Supreme Court needs to rule as constitutional.
The Church of Jesus Christ of Latter-day Saints, along with the United States Conference of Catholic Bishops, the American Islamic Congress and other major religious organizations, also made a legal filing in support of Texas’ law. An attorney from the Salt Lake City law firm Kirton McConkie as well as former Utah Supreme Justice Thomas Lee are among the listed legal counsel.
A trade association for the adult entertainment industry called Free Speech Coalition sued Texas over its law. The group had actually sued Utah as well, but a judge dismissed the suit.
The Texas law case will be heard by the U.S. Supreme Court. Several states across the country like Louisiana (the first state) and Florida have passed similar laws to Texas’ law. The fate of these laws will likely hinge on what the court decides.
Lee, R-Utah, and his colleagues Sen. John Cornyn, R-Texas, and Rep. Chip Roy, R-Texas, along with 20 others joined up to file what’s called a friend of the court brief. Think of it as an effort to assist Texas as it fights for its law to be considered constitutional.
The lawmakers said in the brief they are advocates not only for the First Amendment, but also child welfare. They said age verification laws balance two things: individual liberties and the compelling government interest to keep children from experiencing the effects of pornography.
What this case boils down to is the ability of state and federal governments’ abilities to protect children from the harm caused by pornography, the lawmakers said in the brief. They asked the court to reaffirm that governments can impose age restrictions.
Should government be able to block children from seeing pornography?
Right now, there are several states where pornography websites are not age-gated — that means children can go onto the sites and view pornography.
These lawmakers said this shouldn’t be the case and government should be able to prevent them from seeing it.
In the brief, these lawmakers said pornography has changed from magazines sold in brick and mortar stores, and now online pornography is more objectifying, violent and disrespectful. Children have brains more vulnerable to the effects of watching this kind of content, they said.
Citing research published in an academic journal, Sexual Health & Compulsivity, lawmakers said adolescents and teens who look at pornography are also more likely to engage in risky behavior. They name sending intimate photos of oneself as one of these behaviors and say this “creates opportunities for cyberbullying, extortion, revenge porn and the proliferation of child pornography.”
Calling it a “perilous landscape,” they say this is why governments have passed laws to protect children. Lawmakers said that age verification technology can help them protect children and it’s a small barrier for adults who decide to look at pornography.
Attorneys for the major religious organizations said states should have the ability to make laws in this arena that protect children. If states don’t have this ability, then they can’t protect children now and in the future, especially as technology rapidly advances.
Major religious organizations: Faith communities need laws like the Texas one
Faith communities need states’ help in protecting children from the harms of pornography, said lawyers in the brief from major religious organizations. Because of the spiritual harms pornography poses, the attorneys said laws like Texas’ “are essential to religious parents’ ability to raise their children in their chosen faith.”
Diverse religious groups like Latter-day Saints, Catholics, evangelicals, Jews, Muslims and Hindus recognize the harm of lust and the harm of pornography, said the attorneys.
The brief quotes from the Church of Jesus Christ’s handbook that says the church “condemns pornography in any form” because it “drives away the Spirit of the Lord,” among other reasons.
Parents of children in these faith groups believe they need to teach their kids to avoid pornography, the attorneys said.
“As pornography has become more widespread, it has become increasingly difficult for parents — including parents striving to raise their children consistent with their religious traditions — to prevent their children from viewing it,” said the brief. The internet makes it tough to legislate, too.
Filters aren’t working at blocking children from seeing pornography, said the brief, so parents need multiple lines of defense, including age verification.
The big difference? Smartphones
Both lawmakers and the major religious organizations said smartphones are changing the game.
“Because a significant amount of pornography is viewed by accident, the growth of smartphone use not only makes pornography more accessible, it also makes it more invasive,” said attorneys for the religious groups.
Attorneys for both the lawmakers and religious groups wrote a lot about a 2004 case: Ashcroft v. ACLU.
This case was about a federal law called the Child Online Protection Act, which, among other things, attempted to block children’s access to pornography. The law was struck down and in the majority opinion, Justice Anthony Kennedy said filters were a less restrictive way of accomplishing the goal (rather than adults identifying themselves or providing credit card information to verify ages). But he also said the ruling doesn’t mean Congress can’t regulate the internet to prevent children from accessing harmful materials.
The lawmakers said this 2004 case was decided during a different time — kids didn’t have computers in the form of smartphones in their pockets. Instead, they accessed the Internet generally through a home or library computer in the view of others.
Filters don’t cut it anymore, said the lawmakers. Kids can get around them or they could use their friends’ phones.
Without Texas’ law and others like it, religious communities and parents “will be left to fight this vicious plague alone,” said the attorneys for the religious organizations. “And it is likely to be a losing battle.”
Does this all hinge on a legal test?
Let’s get dorky here for a moment. When courts are looking at the constitutionality of laws, they have some options for the legal theory they use to do that. In this case, there are two legal theories that are relevant to use.
The lawmakers argued in the brief that the Supreme Court should use what’s called rational basis review. If the court were to use this test, this means they would look at the law and ask if the court has a legitimate interest — and also if the law reasonably fits that interest.
Basically, rational basis review means fewer eyebrows are raised at a law.
The Free Speech Coalition wants a different legal test used: strict scrutiny. This is a much harder legal test for a law to pass. If the court were to look at the law and say the law limits a constitutional right, then it would use this test. Even though it’s harder to pass, a law can pass the test if the government shows a compelling reason why the law is needed.
The law would have to be written in a way that meets that interest in the least restrictive way possible if it were to pass strict scrutiny.
The lawmakers don’t think this stricter test should be used to look at whether or not the Texas law is constitutional.
“The modern-day shopkeeper should face no lesser burden to verify the age of its customers, nor should the government face a much higher burden to regulate,” said the lawmakers in their brief.
If the court were to apply the other, stricter legal test, the lawmakers said it would dissuade states from passing laws to protect children from pornography. The brief said at least 16 states have declared pornography a serious public health issue (Utah was the first to do so) and 18 states so far have passed some kind of age verification law.
“Given the myriad devices children can (and do) use to access the internet without supervision, these reforms represent the best hope for shielding children from pornography online,” said the brief.
Attorneys for the faith groups also said the court shouldn’t use strict scrutiny. They argued that using strict scrutiny makes it functionally impossible to pass most laws protecting children from the harms of pornography. Most of those laws would likely fail under that standard and also face a lot of litigation.
The First Amendment wouldn’t be undermined by using the rational-basis review test, said the attorneys for the faith groups. Freedom of religion has roots as far back (at least) as the Maryland Toleration Act in 1649, but that’s not true for obscenity. These attorneys quoted former Justice Stephen Beyer, who said obscenity is one of just a handful of categories of speech that is “generally unprotected by the First Amendment because of (its) content.”
“To invalidate Texas’ law based on perceived incidental burdens on adult access to obscene materials would elevate protections for smut far beyond what our history and tradition justify,” said attorneys for the religious organizations.
What this all means for Utah
State lawmakers in Utah and Utah’s lawmakers out in D.C. have been fighting to protect children from the harm of pornography, especially over the last few years. How the Supreme Court rules on this law could impact the state in a couple ways.
First, if the court strikes down Texas’ law, it’s likely to have implications for Utah because the state has a very similar law. But that’s not something we will know about until the court releases its opinion — probably in June or July 2025.
In addition to passing a similar law to Texas, Utah has another law requiring smartphones or tablets to automatically filter obscene material for minors. State Sen. Todd Weiler, R-Woods Cross, who has been at the forefront of Utah’s legislature to protect children from pornography, sponsored this bill. Gov. Spencer Cox signed it during the last session and it’ll impact smartphones and tablets manufactured on or after Jan. 1, 2025.
But it could also impact a bill Lee has been pushing for on the national stage, too.
The Shielding Children’s Retinas from Egregious Exposure on the Net (the pithier title is the SCREEN Act) is something Lee has been trying to get through Congress for a while — it would require pornography websites to verify that users are over 18.
With a Republican Congress and a Republican president, Lee could have an easier time of things getting it passed come 2025, but if the court says Texas’ law is not constitutional, then it might be difficult for the SCREEN Act to withstand a constitutional challenge (depending on the reasoning of the ruling).
In any case, the Supreme Court will hear arguments on Texas’ law in the coming months and the court’s decision will likely be an important standard states will look at for making laws to protect children from pornography.