The U.S. Supreme Court on Friday upheld a Texas law requiring consumers to provide age verification in order to gain access to commercial websites that provide sexually explicit material. It was the first time that the court has imposed requirements on adult consumers in order to protect minors from having such access.
Free-speech advocates argued that while the law’s goal is to limit minors’ access to online sexually explicit content, it is overly vague and imposes significant burdens on adults’ access to constitutionally protected expression. Lawyers for Texas said in their filing, and during arguments, that the law’s opponents have failed to show a single person whose rights have been “chilled” by it.
By a vote of 6-3 along ideological lines, the court agreed with Texas, saying the law “only incidentally burdens the protected speech of adults.”
The Texas measure, enacted in 2023, was aimed at protecting kids under the age of 18 from exposure to sexually explicit material.
It did that by requiring every user, including adults, to first provide proof, typically via a government-issued identification, that he or she is at least 18 years old. The statute applies to all websites that contain content that is one-third or more “sexually suggestive” in nature and “harmful to children.”
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Just what the term “harmful to children” means is debatable because, according to the websites, the term covers any sexually suggestive material, including romance novels and R-rated movies.
The Free Speech Coalition, an adult industry trade association, and several adult industry producers challenged the law in court, contending that it violates the First Amendment guarantee to free speech and expression.
The groups noted, among other things, that while the statute does bar companies from retaining the identifying information, it does not prohibit transfer of that information or impose any other protection from disclosure to protect adults’ privacy. Moreover, the challengers maintained the state’s defense of the statute falls apart in light of the fact that it exempts from the law’s coverage the search engines and social-media platforms that are the principal gateways for minors gaining access to sexually explicit content.
Federal judge David Alan Ezra, a Reagan appointee, initially barred the law from taking effect, on the grounds that it likely is unconstitutional.
But a Fifth Circuit Court of Appeals panel voted 2-to-1 to uphold the law, clearing the way for it to take effect. The appeals court said that because the state justified the law as rationally related to its purpose of protecting children, that is all that is necessary. The so-called rational basis test used by the appeals court means essentially that a law passes muster as long as the legislature had any rational justification. It is the court’s least rigorous standard, and the challengers maintained that it was far too lax and ignored the impact on adult users.
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