WASHINGTON — A Texas anti-pornography law is going before the Supreme Court on Wednesday in a collision of free speech rights, regulation of online content and the protection of children.
Texas is among more than a dozen states with similar laws aimed at blocking young children and teenagers from viewing pornography. The adult-content site Pornhub has stopped operating altogether in several of those states, citing the technical and privacy hurdles in complying with the laws.
Texas says its measure is necessary to protect children from the current near-instantaneous access to porn, including hardcore obscene material, on smartphones. “Texas seeks to protect kids from some of the most prurient sexual content imaginable,” state attorneys wrote in court documents.
The Free Speech Coalition, an adult-entertainment industry trade group, says the Texas law wrongly affects adults by requiring them to submit personal identifying information online, making it vulnerable to hacking or tracking.
The group agrees that children shouldn’t be seeing pornography, but it argues the new law is so broadly written it could also apply to sexual education content or simulated sex scenes in movies. The law also leaves a loophole by focusing on porn sites rather than the search engines often used to find porn, the group says in court documents.
“This really is about how the government can regulate any speech that it doesn’t like,” Vera Eidelman, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project, told reporters last week. “Pornography is often the canary in the coal mine for free speech.”
This isn’t the first time the Supreme Court has confronted the issue. In 1996, the court struck down parts of a law banning explicit material viewable by kids online. In 2004, a divided Supreme Court ruled against a different federal law aimed at stopping kids from being exposed to pornography but said less restrictive measures like content filtering are constitutional.
Texas argues that technology has improved significantly in the past 20 years, allowing online platforms to quickly and easily check users’ ages with a quick picture, making it more like ID checks at traditional stores that were upheld by the Supreme Court in the 1960s.
The states won in the 5th Circuit Court of Appeals, where a divided panel overturned a lower court and allowed the age verification requirement to go into effect. The Supreme Court previously refused an emergency appeal asking to put the age verification on hold while the legal fight continues.
Other states with similar laws include Tennessee, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Utah and Virginia.
The Texas law carries fines of up to $10,000 per violation that could be raised to up to $250,000 per violation by a minor.
