Report from the Washington Post
In Brief – The US Supreme Court has ruled that requiring online porn websites to use age verification tools to confirm that users are adults does not violate the First Amendment. Advocates for the porn industry argued that Texas’s 2023 law requiring adults to provide personal information to porn websites “chilled” their ability to access fully legal content and failed to meet the “strict scrutiny” test under First Amendment jurisprudence. The Texas law was blocked by a federal district judge applying strict scrutiny, but a federal appeals panel overturned that decision and instead applied the laxest level of scrutiny, called “rational basis” review. In an opinion that split along conservative and liberal lines, a six-justice majority said the middle ground of “intermediate scrutiny” was right for judging age checks for online porn, which most notably did not require the state to prove that it adopted the least restrictive means of pursuing its interest of protecting minors from pornography, nor did the law need to avoid underinclusiveness by failing to block other ways to access the offending content. While the minority argued that the majority ignored a line of free speech precedents that were directly on point regarding minors and obscene material, the majority said that online pornography was different than in the past, and that ID checks were a long-established tool to protect young people from harms that should not be prohibited simply because they are proposed in the online context.
Context – “Protecting” teenagers from online harms is a global phenomenon. Porn sites and social media are the big targets. And most of the attention given to this case is not about porn, it’s about the flood of state laws attempting to restrict how teenagers use social media. Those laws keep being blocked by federal judges for violating the First Amendment. Although some free speech advocates argue that this decision could weaken free speech online in the US broadly, it may prove to be more a reflection of the Court majority’s view on pornography more narrowly. However, that’s an open question that will await appeals of the decisions to pause the laws regulating teen access to social media, which are probably more than a year down the pike.