SCOTUS agrees to review Texas law that caused Pornhub to leave the state

The US Supreme Court today agreed to hear a challenge to the Texas law that requires age verification on porn sites. A list of orders released this morning shows that the court granted a petition for certiorari filed by the Free Speech Coalition, an adult-industry lobby group.

In March, the US Court of Appeals for the 5th Circuit ruled that Texas could continue enforcing the law while litigation continues. In a 2-1 decision, 5th Circuit judges wrote that "the age-verification requirement is rationally related to the government's legitimate interest in preventing minors' access to pornography. Therefore, the age-verification requirement does not violate the First Amendment."

The dissenting judge faulted the 5th Circuit majority for reviewing the law under the "rational-basis" standard instead of the more stringent strict scrutiny. The Supreme Court "has unswervingly applied strict scrutiny to content-based regulations that limit adults' access to protected speech," Judge Patrick Higginbotham wrote at the time.

Though the 5th Circuit majority upheld the age-verification rule, it also found that a requirement to display health warnings about pornography "unconstitutionally compel[s] speech" and cannot be enforced.

While the Supreme Court could eventually overturn the age-verification law, it is being enforced in the meantime. In April, the Supreme Court declined a request to temporarily block the Texas law.

Pornhub disabled site in Texas

After losing that April decision, the Free Speech Coalition said: "[We] remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we've challenged."

The Texas law, which took effect in September 2023, applies to websites in which more than one-third of the content "is sexual material harmful to minors." Those websites must "use reasonable age verification methods" to limit their material to adults.

In February 2024, Texas Attorney General Ken Paxton alleged in a lawsuit that Pornhub owner Aylo (formerly MindGeek) violated the law. Pornhub disabled its website in Texas after the 5th Circuit ruling and has gone dark in other states in response to similar age laws.

The Free Speech Coalition's petition for certiorari said that the Supreme Court "has repeatedly held that States may rationally restrict minors' access to sexual materials, but such restrictions must withstand strict scrutiny if they burden adults' access to constitutionally protected speech." The group asked the court to determine whether the 5th Circuit "erred as a matter of law in applying rational-basis review to a law burdening adults' access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done."

"While purportedly seeking to limit minors' access to online sexual content, the Act imposes significant burdens on adults' access to constitutionally protected expression," the petition said. "Of central relevance here, it requires every user, including adults, to submit personally identifying information to access sensitive, intimate content over a medium—the Internet—that poses unique security and privacy concerns."

Texas wanted SCOTUS to wait

The underlying case is in US District Court for the Western District of Texas. A judge in that court stayed the proceedings pending the Supreme Court's decision on whether to grant certiorari.

Paxton's brief opposing certiorari said the "First Amendment does not allow even adults to access obscenity" and that the state law only "applies to overwhelming amounts of content that meet this Court's test for adult obscenity."

Even if "the content on Petitioners' websites is not obscene as to adults, because the Constitution does not protect access to such material for children, it also does not preclude the States from requiring entities like Petitioners to determine whether their customers are adults or children," Texas said.

Paxton argued that the Supreme Court should let the sides "fully litigate the issues in the district court and on appeal," saying there is "no need for the Court to rush to judgment, and every reason to think that its analysis of the complex question would benefit from allowing the ordinary litigation (and percolation) process to unfold."

Paxton cites “advances in technology”

Paxton also wanted the Supreme Court to wait to see how other circuit appeals courts address questions raised by "advances in technology." The Supreme Court "should not address how to apply [the Ginsberg precedent] in the context of today's Internet until other circuits weigh in," Texas argued.

Given that other states' age-verification laws are being challenged, it is "only a matter of time before other circuits address the issue and can determine whether they agree with the Fifth Circuit. The Court's decision-making process will be improved following such percolation," Paxton wrote.

In a reply filed in June, the Free Speech Coalition said that "technological status makes no difference to the conflict over the governing legal question," and that "precedents cannot be discarded simply because technology evolves."

"Texas cites no case in which this Court has held the level of constitutional scrutiny varies (let alone plummets from the highest tier to the lowest) based on technological evolution. To the contrary, this Court has repeatedly held that the protections of the First Amendment, like those of other constitutional provisions, endure as technology evolves," the group said.