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Porn Sites, Age Verification, and the Supreme Court
The Justices consider a Texas law telling websites to screen for minors.
By The Editorial Board, WSJ
Jan. 14, 2025 5:37 pm ET
The Supreme Court of the United States Photo: Amanda Andrade-Rhoades/Associated Press
Does the First Amendment mean internet porn sites can’t be required to verify that their users are 18 years or older? Tune in Wednesday, as the Supreme Court hears Free Speech Coalition v. Paxton.
Texas passed a law in 2023 saying that porn purveyors—technically, websites whose content is more than one-third “sexual material harmful to minors”—must start using “reasonable age verification methods.”
The roll call on this idea, in the state House and Senate combined, was 164-1. Other states have passed similar laws. “H.B. 1181 does not prevent adults from viewing pornography,” Texas tells the Justices in a brief. “It requires online pornographers to take commercially reasonable steps to ensure that their customers are not children.”
The lead challenger in the case is the Free Speech Coalition, an “adult entertainment” industry group, which says it agrees that protecting minors is a compelling state interest. It argues, however, that age verification is too great a burden on the First Amendment rights of adult Texans, forcing them “to incur severe privacy and security risks—which the statute leaves largely unaddressed—before they can access constitutionally protected speech.”
Texas cites Ginsberg v. New York (1968), in which the High Court upheld the conviction of a stationery store owner who “sold a 16-year-old boy two ‘girlie’ magazines,” in violation of a New York law that required the buyer to be 17. The Free Speech Coalition cites U.S. v. Playboy Entertainment (2000), in which the Court said that Congress had gone too far in trying to prevent the “imperfect scrambling” of adult cable-TV channels from leaking “discernible images” via “signal bleed.”
It isn’t 1968 or 2000 any more. “Through smartphones and other devices,” Texas says, “children today have instantaneous access to unlimited amounts of hardcore pornography.” According to a study cited in its brief, 53% of children have a smartphone by age 11. The Supreme Court has also held, including in Miller v. California (1973), that the First Amendment doesn’t protect “obscene” material. Texas argues that’s a legal problem for the petitioners here, “because much of the content on their websites is obscene even for adults.”
The Texas law was challenged on its face, before its enforcement, which means the briefs are full of speculation. The porn coalition says the law is overbroad: “A website that contains 65% core political speech and 35% sexually suggestive content would be 100% subject to H.B. 1181’s restrictions.” Texas isn’t so sure: “If otherwise covered websites were to rigidly segregate obscene material, H.B. 1181 presumably would not apply.”
The petitioners say that demanding an ID on the internet, unlike at the local stationery store, entails “severe risks,” such as hacking. Texas replies that some of these sites take credit cards, so hacks are already a hazard. The state says digital age verification is becoming commonplace, including for “millions of customers who use DraftKings for fantasy sports betting.” Sometimes such checks can be done via third-party apps that validate an ID or credit card, while keeping the details private.
The lopsided roll call in the Texas capitol suggests how millions of voting parents feel about this issue. When Louisiana enacted its age law, the tally in the state House and Senate was 130-1. In Virginia it was 134-2. Bills in Utah and Arkansas passed unanimously. Some porn sites have reacted by entirely blocking affected states. Then again, trying out age verification would undermine their litigation position that it’s impractical.
American adults are generally at liberty to do as they wish. But the state has an interest in protecting minors, and it can’t be that the internet renders this moot. New York in 1968 constitutionally told vendors of “girlie” magazines to screen out buyers under age 17. Several states now want such a rule for today’s online porn warehouses. That doesn’t offend High Court precedent or the First Amendment.
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