The Supreme Court upheld a Texas law to protect kids from online porn.
Justices ruled 6 to 3 on Friday, in Free Speech Coalition v. Paxton, that Texas’ law requiring porn sites to verify users’ age does not violate the First Amendment.
Gov. Greg Abbott signed HB 1181 in 2023, attempting to protect minors from “harmful sexual material” online.
So the Free Speech Coalition – the porn industry’s “trade association” – sued Attorney General Ken Paxton in 2023, claiming the law was “unconstitutional” for placing barriers on explicit content.
Paxton defended the law. “Let me put this simply: these companies do not have a right to expose children to pornography,” Paxton said in a release at the time.
Justice Clarence Thomas delivered the majority opinion, upholding Texas’ law, on June 27. Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett concurred.
“History, tradition, and precedent recognize that States have two distinct powers to address obscenity: They may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children,” Thomas wrote.
Texas’ law defines sexual material harmful to minors as that “designed to appeal or to pander to the prurient interest,” which depicts “various sex acts and portions of the human anatomy” offensive to minors, and lacks “serious literary, artistic, political, or scientific value” for minors, Thomas explained.
“H. B. 1181 is not the only law of its kind,” he wrote. “At least 21 other States have imposed materially similar age-verification requirements to access sexual material that is harmful to minors online.”
Thomas also acknowledged that historically and legally, “not all speech is protected,” including “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.”
“The statute advances the State’s important interest in shielding children from sexually explicit content,” Thomas wrote. He pointed out the law passed with wide, bipartisan support, as only one member of the Texas legislature voted against the bill.
Justice Elena Kagan wrote the dissent. Justices Sonia Sotomayor and Ketanji Brown Jackson also dissented.
Kagan expressed concern the law could inhibit adults from watching porn.
“In preventing children from gaining access to ‘obscene for children’ speech, States sometimes take measures impeding adults from viewing it too—even though, for adults, it is constitutionally protected,” she wrote.
She said Texas could “do better,” protecting children without obstructing adults from “viewing the speech” covered by the bill. “That is the ultimate question on which the Court and I disagree,” Kagan wrote.
The National Center on Sexual Exploitation celebrated the ruling. The group filed an amicus brief on behalf of 15 Texas state senators supporting the law.
“Now children in Texas will have a measure of protection from accessing pornography websites that are rampant with content that includes sexual assault, rape, child sexual abuse, image-based sexual abuse, along with other violent and racist themes,” said NCOSE Senior Vice President Dani Pinter in a press release.
Pinter said the “world’s most abusive, violent, and racist pornographic content is easily accessible to children online.” She called the Supreme Court ruling “critical,” and applauded Texas’ age verification measures.
Age verification is part of a “multi-layered approach” to “protect kids from harmful online porn,” according to Pinter. She said the group hopes more states will consider these measures, as well as “device filter legislation” and the App Store Accountability Act, which would prevent kids from seeing explicit content on app stores.
“This ruling paves the way for other states to pass similar legislation and will have a profound positive impact on preventing children from being exposed to pornography online,” Pinter said. She said she hopes the ruling will have a “profound positive impact” on protecting kids.