A trade group for the adult entertainment industry will appear at the Supreme Court on Wednesday in its challenge to a Texas law that requires pornography sites to verify the age of their users before providing access – for example, by requiring a government-issued identification. The law applies to any website whose content is one-third or more “harmful to minors” – a definition that the challengers say would include most sexually suggestive content, from nude modeling to romance novels and R-rated movies.

The state counters that the law is necessary because the proliferation of smartphones has created an explosion in access by young people to “unlimited amounts of hardcore pornography,” which has in turn created a public health crisis.

The Texas legislature passed the law, known as H.B. 1181, in June 2023. Before the law could go into effect, an adult-industry trade association went to federal court, where it argued that the age-verification requirement violates the First Amendment because it burdens adults’ access to expression protected by the Constitution.

A federal district court in Austin, Tex., issued an order that temporarily barred the state from enforcing the age-verification requirement. Senior U.S. District Judge David Alan Ezra wrote that because the law would require adults to submit personal data to access the sites, it discouraged access by creating concerns about identity theft and extortion. As a practical matter, Ezra concluded, H.B. 1181 is identical to a federal law, the Child Online Protection Act, that the Supreme Court deemed likely unconstitutional in its 2004 decision in Ashcroft v. ACLU.

The U.S. Court of Appeals for the 5th Circuit lifted Ezra’s order. It acknowledged that the Texas law was “very similar” to the Child Online Protection Act. But it declined to apply strict scrutiny – the most stringent standard of review, which requires the government to show that the law both serves a compelling government interest and is narrowly drawn to advance that interest – on the ground that in Ashcroft the federal government, in defending the law, had not disputed that strict scrutiny applied.

Instead, the 5th Circuit applied a less rigorous standard of review, known as rational basis review, which looks at whether the statute furthers a legitimate state interest, and whether there is a rational connection between that interest and the law.

The court of appeals relied on the Supreme Court’s 1968 decision in Ginsberg v. New York holding that states may restrict young people’s access to sexual materials that are harmful to them. In that case, the court applied rational-basis review to a state law that made it a crime to sell pornographic magazines to young people.

Applying rational basis review to H.B. 1181, the 5th Circuit concluded that Texas’s age-verification requirement is rationally related to the government’s interest in preventing young people’s access to pornography.

The Supreme Court rejected a request last spring to reinstate Ezra’s order and block Texas from temporarily enforcing the law, but it agreed in July to take up the dispute and review the 5th Circuit’s decision.

As the case comes to the Supreme Court, it centers on what standard of review – rational basis or strict scrutiny – the court of appeals should have used to determine whether the law violates the First Amendment.

Free Speech Coalition, a trade association for the adult entertainment industry, insists that H.B. 1181 should be subject to strict scrutiny. Although the court in Ginsberg held that states can limit access by young people to sexual content that may harm them, Free Speech Coalition acknowledges, since then – culminating in its decision in Ashcroft – the court has applied strict scrutiny to laws that, while seeking to protect young people, make it more difficult for adults to access material that they have a right to view.

Any failure by the federal government in Ashcroft to contend that rational-basis review applied was not an “oversight,” Free Speech Coalition contends, but instead a “recognition” that the Supreme Court “had clearly and repeatedly held that strict scrutiny applies to laws like COPA.”

Nothing in Ginsberg justifies applying rational basis review here, the trade association concludes. The law in that case only prohibited “knowing” sales to young people and did not place any restrictions on adults’ access to sexual content. “Indeed,” the group stresses, “no court in the 20 years since Ashcroft or the 56 years since Ginsberg has even suggested anything like the position adopted by the Fifth Circuit here.”

When strict scrutiny is applied, the trade group continues, this is a “straightforward” case. The group agrees that Texas has a compelling interest in protecting young people and that – just as the court indicated in Ashcroft – “a law narrowly tailored to that objective can survive strict scrutiny.”

But the Texas law is “triply flawed,” the group maintains. On one hand, it sweeps in too much speech, because the age-verification requirement applies whenever an adult wants to access any speech on any website where sexual material that is harmful to young people comprises at least one-third of the site’s content. “For example,” the group writes, “a website that contains 65% core political speech and 35% sexually suggestive content would be 100% subject to H.B. 1181’s restrictions.”

On the other hand, the group says, the law is underinclusive, because it does not apply to other ways that young people can access the same kind of content that the law seeks to restrict, such as social media sites like Facebook and Instagram and search engines.

Third, the group continues, there are other, less restrictive ways to achieve Texas’s goal of protecting young people. In Ashcroft, the group notes, the Supreme Court “specifically identified” content-filtering software as a better way to limit young people’s access to inappropriate material “without burdening adults’ access to speech they have a right to receive.”

The state’s failure to rely on content-filtering software is particularly striking, the group adds, because that technology has improved in the two decades since the court’s decision in Ashcroft. By contrast, it notes, young people have gotten better at using technology to bypass age-verification requirements, while the potential problems associated with requiring online age verification (such as data breaches, identity theft, and extortion) have grown worse.

Any of those flaws would be enough, standing alone, to render the law unconstitutional, Free Speech Coalition asserts. But when all three are considered together, the group writes, they “underscore that H.B. 1181 is designed foremost to target disfavored speakers — whom the law brands with self-condemning ‘health warnings’ – rather than to meet the state’s purported objective.”

Free Speech Coalition cautions that upholding the 5th Circuit’s decision could lead to “even more troubling restrictions on speech” – ranging from efforts to restrict sexual content more broadly as part of an effort to protect young people to applying rational-basis review to other restrictions that seek to shield young people from “purportedly harmful speech” that does not involve sexual content.

The Biden administration joined the case as a “friend of the court” and will share argument time on Wednesday. The government agrees with Free Speech Coalition that the court of appeals should have subjected H.B. 1181 to strict scrutiny. But the Supreme Court should send the case back to the 5th Circuit for another look, U.S. Solicitor General Elizabeth Prelogar writes. And when it does, Prelogar adds, the justices should “make clear that the First Amendment does not prohibit Congress and the States from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet.”

The state emphasizes that H.B. 1181 does not bar adults from accessing pornography, nor does it require them to identify themselves. Instead, Texas Solicitor General Aaron Nielson writes, the law simply requires websites that host pornography “to take commercially reasonable steps to ensure that their customers are not children” – a requirement, the state says, that is consistent with restrictions imposed elsewhere in the world (such as the United Kingdom, Australia, France, and Germany) and by other industries, such as online sports betting.

The state stresses that Free Speech Coalition “does not dispute” that if its members sold sexually suggestive content from “brick-and-mortar bookstores or sidewalk magazine stands, Texas could combat that harm by requiring them to make sure their customers are not children.”

In Ginsberg, the state says, the Supreme Court made clear that laws restricting young people’s access to materials that are harmful to them are subject to rational-basis review. The same test should apply to the state’s requirement that websites that host pornography verify that their customers are indeed adults, it insists.

If Ashcroft bars Texas from requiring websites that host pornography to use age-verification technology, even when the state can impose a similar requirement on brick-and-mortar merchants, the state continues, then it should be overruled. “Reliable age verification was not on the table twenty years ago,” the state acknowledges, but “that is not remotely true today.” Moreover, Texas added, the world has changed more broadly in the two decades since the court’s ruling in Ashcroft, with “online obscenity” becoming “much more dangerous for kids as the volume, production quality, and algorithm usage increases.”

Even if Ginsberg does not apply to online pornography, the state writes, H.B. 1181 can still survive even strict scrutiny because it is the least restrictive way to achieve Texas’s interest in shielding children from pornography. Texas “has addressed only websites dedicated to pornography, has allowed them to comply by using common age-verification technology, and has not imposed criminal penalties,” it contends. Free Speech Coalition also cannot show that content filtering would be as effective as an age-verification requirement – because, although it has been tried, it is too easy to circumvent and therefore has not worked.

Moreover, at this stage of the challenge, the state says, when Free Speech Coalition is arguing that the state should not be allowed to enforce the law against anyone – what is known as a facial challenge – the group must show that the number of the law’s unconstitutional applications significantly outweigh the scenarios in which it is constitutional. But it cannot do so, the state contends, “because much of the content on” the websites covered by the law “is obscene even for adults.”

Finally, to obtain an order temporarily blocking the law, the state says, Free Speech Coalition must demonstrate not only that the law is likely unconstitutional (which it has not done) but also that its members are likely to be permanently harmed if the law is allowed to go into effect and that putting the law on hold serves the public interest. But, the state asserts, the group has not identified anyone who has been deterred from visiting its members’ websites as a result of the age-verification requirement.

And although H.B. 1181 has been in effect since Sept. 2023, the state adds, “the sky has not fallen.” Therefore, Texas concludes, the Supreme Court “should retain that status quo while litigation continues.”

This post is also published on SCOTUSblog.