The Supreme Court will hear a case on a Texas law requiring pornographic websites to verify the ages of their users that may have implications for Utah.
The first Monday in October marks the start of a new session for the country’s top court. The Free Speech Coalition, a trade group representing the adult entertainment industry, sued Texas over its law arguing it violated the free speech clause. Oral arguments have not yet been scheduled, but the eventual ruling could have implications for several other states including Utah.
Louisiana was first in passing a law requiring pornography websites to verify the ages of users and block children from accessing it. Several other states including Utah followed. Utah’s law was also challenged by the Free Speech Coalition, though a judge upheld the law.
Sen. Todd Weiler, R-Woods Cross, and Rep. Susan Pulsipher, R-South Jordan, sponsored Utah’s age verification bill in 2023. Lawmakers on both sides of the aisle unanimously voted in favor of the measure.
U.S. District Judge Ted Stewart dismissed the suit filed by the Free Speech Coalition without prejudice. “They just cannot receive a pre-enforcement injunction against the two named Defendants,” said Stewart in the order. The two Utah officials sued did not have a specific ability to enforce the law, said Stewart, and so claims against both of them were dismissed. The Free Speech Coalition filed a notice of appeal.
The judge in the Utah case did not address whether or not the law violated the First Amendment, but the Texas case will.
After Texas was blocked from enforcing its law, it appealed to the U.S. Court of Appeals for the 5th Circuit where a panel of three judges reviewed the case. Two of the judges said the Free Speech Coalition was not likely to succeed on its challenge.
These two judges said the appropriate legal test in this case was rational-basis review. This kind of judicial review test is when judges look at whether or not a law has a state interest and if the law actually furthers that state interest.
It is a less strict legal test than strict scrutiny — the constitutional test the other judge said needs to be used. In a strict scrutiny test, the government would need to show a compelling government interest and explain how the law was narrowly tailored to meet that interest.
The judge said the Texas law “limits access to materials that may be denied to minors but remain constitutionally protected speech for adults. It follows that the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction — whether that speech is harmful to minors.”
The Free Speech Coalition went to the Supreme Court and filed an emergency appeal, asking them to block the law. The court did not grant the emergency appeal, which meant the law was still in effect.
When the Supreme Court hears oral arguments on the Texas law, it is likely the decision will address what kind of legal test should be employed in this case: strict scrutiny or rational-basis review.
A ruling that knocks down Texas’ law could open up the floodgates for legal challenges to Utah’s law. But a ruling upholding the law could mean the Beehive State’s law is here to stay.
Past precedent from the Supreme Court
However the Supreme Court rules, there are a couple of previous cases expected to be part of the discussion: Ashcroft v. ACLU and Reno v. ACLU.
The Ashcroft case dealt with a federal law known as the Child Online Protection Act. This 1998 law attempted to restrict children’s access to pornography, among other provisions. The law went through multiple courts as it was challenged.
In 2004, the Supreme Court struck down the law in a 5-4 ruling. Justice Anthony Kennedy wrote the majority opinion and said filters would be less restrictive than the federal. He also said they may be more effective.
“Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information,” said Kennedy.
Kennedy said the ruling was not meant to say Congress cannot regulate the Internet to prevent kids from accessing harmful materials. It was meant to say the government did not show why they could not use less restrictive ways of achieving its purposes.
The 5-4 opinion drew on a prior case known as Reno v. ACLU. It was a 1997 case regarding two parts of the 1996 Communications Decency Act, which was an earlier law with a similar aim as COPA. There was a successful legal challenge to a couple of its provisions that dealt with “indecent” material online.
One of the dissents in Ashcroft came from Justice Antonin Scalia, who said strict scrutiny should not be employed in the case of COPA.
The kind of business the law covered earns a profit on content that “is designed to appeal to, or is designed to pander to, the prurient interest,” wrote Scalia quoting U.S. code. “Since this business could, consistent with the First Amendment, be banned entirely, COPA’s lesser restrictions raise no constitutional concern.”
Another dissent was written by Justice Stephen Breyer along with Chief Justice William Rehnquist and Justice Sandra Day O’Connor. It argued Congress could not have made COPA less restrictive.
This dissent dealt directly with the age verification component. It called it “a modest additional cost” to adults who wished to see the content that required the age verification. Breyer said the suggestion of a filtering system was not effective and would not achieve the purposes of the law.
The law’s proposed method of blocking children from seeing pornography is more efficient, wrote Breyer. “That is to say, at a modest additional cost to those adults who wish to obtain access to a screened program, that law will bring about better, more precise blocking, both inside and outside the home.”
These questions on age verification — and the subsequent disagreement on them — may resurface again as the Supreme Court considers the Texas law. Age verification in particular both for these laws preventing minors from accessing pornographic content and for social media laws have hindered laws from going into effect in some states. It’s possible whatever language the court’s opinion on the Texas law uses could have further reaching impacts.
What’s the timeline?
The Supreme Court has not indicated when it will hear oral arguments, only that it will hear these arguments.
It’s expected an opinion could be released sometime in June or July 2025.