Texas age verification decision could create a First Amendment ‘pornography exception,’ experts worry

The Supreme Court ruled late last month that a Texas law requiring porn sites to verify their users’ ages can stand. Observers have warned that the ruling could change the nature of the internet, and the First Amendment.

Justices found that the law does not place an undue burden on users by asking them to prove their age before they visit adult entertainment websites, and their free speech rights under the First Amendment are not impacted by verification.

Writing for the 6-3 majority, Justice Clarence Thomas said the law, which Texas Gov. Greg Abbott signed into law in 2023, falls within a state’s “authority to shield children from sexually explicit content.

“The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective,” he continued.

State officials hailed the decision, including Texas Attorney General Ken Paxton, who said in a statement that it is a “major victory for children, parents, and the ability of states to protect minors from the damaging effects of online pornography.”

But others are less convinced, and repeated their warnings of a “profound chill” on free speech on the internet, and further targeting of the adult entertainment industry. The Free Speech Coalition brought a lawsuit against the Texas law, backed by the American Civil Liberties Union.

“What the Supreme Court has done is it has made what it would call a ‘pornography exception’ to the First Amendment,” Ben Wizner, Speech, Privacy, and Technology Project director at the ACLU, said during a briefing. “Our concern is that lots of valuable speech about sexuality, which should enjoy full constitutional protection, is now going to be — if not off limits to adults — at least it will deter many adults from viewing that information because they have very legitimate concerns about typing their personal information into a government database before accessing it.”

The start of the new month meant new age verification laws went into effect in several states, including South Dakota and Wyoming. But a district judge blocked a similar law in Georgia, calling it an “immense, potentially intrusive burden on all Georgians.”

Twenty-four states now require age verification to access pornographic websites, with another dozen looking to pass similar legislation and a national law known as the Shielding Children's Retinas from Egregious Exposure on the Net (SCREEN) Act also pending. Wizner said it is a troubling trend that will surely only grow now that this law in Texas has been declared constitutional. And, depending on how it is interpreted, it could impact adults who need to view information about sexual health for their job, for example.

“How far can the government go to restrict the free speech rights of adults and the name of protecting children from viewing sexual content, in this case, online?” he said. “There are a series of government efforts and crude attempts by Congress over the years to essentially censor the internet in the name of protecting children. Turn the entire internet into a sandbox because some kid somewhere might see something naughty.”

One group expecting to see a boom is the age verification technology providers, which see their solutions used across other parts of the world but have so far struggled to overcome skepticism in the U.S. Iain Corby, executive director of the Age Verification Providers Association, said the decision showed that age verification tech is “effective, proportionate and privacy-preserving.”

“We expect this judgment to accelerate the adoption of age verification laws across the remaining 26 US states and globally,” Corby said in an email. “We look forward to working with both regulators and the adult industry to implement systems that are simple for users, including being reusable and interoperable across platforms. This degree of collaboration has been successful in the UK where leading sites only yesterday committed to comply with its new law from the end of July. We will also continue to support lawmakers around the world in aligning regulation with emerging international standards, ensuring adult sites can comply consistently across jurisdictions and operate on a level playing field.”

Some, however, warned of the impact on the internet as a whole and laws that govern it. Roy Gutterman, a law and journalism professor at Syracuse University and director of the Tully Center for Free Speech, said the decision “changes the way the law will look at internet regulations relating to content deemed inappropriate for minors but permissible for adults.”

“The Texas age-verification requirement for online pornographic websites may be supported by an important government interest in keeping sexualized content out of the hands of minors; there might still be a burden on adults, who have a First Amendment right to access that same material,” Gutterman said in an email. “[Earlier] precedent held laws to higher standards because of the potential effect on adults. Today, the court is moving in a different direction. Framing this entirely as a minors' access issue justifies the government's interest and somewhat shifts the focus away from adults' First Amendment rights.”