Authors: Andrew Chung and John Kruzel

WASHINGTON (Reuters) – The U.S. Supreme Court is scheduled on Wednesday to hear a free speech challenge to a Texas law that requires pornography sites to verify users’ ages, in a case testing the legality of state efforts to prevent minors from viewing such content online.

An industry group representing performers and adult entertainment companies appealed a lower court’s decision to allow the Republican-led state to implement age verification, saying it likely did not violate the U.S. Constitution’s First Amendment protection against government shortening of speech.

The 2023 measure is one of 19 similar measures introduced across the United States, mostly in Republican-led states, as policymakers worry about how the spread of explicit pornographic material online affects the well-being of minors.

Texas law requires any website whose content is more than one-third “sexual material harmful to minors” to require all users to provide personal information verifying that they are at least 18 years of age in order to access it.

The challengers, represented by the American Civil Liberties Union and other organizations, include the Free Speech Coalition, a trade association for performers, producers and distributors of adult content, as well as companies that operate several pornographic websites, including Pornhub.com and xnxx.com.

Last year, the Supreme Court rejected the applicants’ request to halt enforcement while the litigation in the dispute continued.

This case tests the limits of the state’s authority to protect minors from vulgar materials deemed harmful to them by decision-makers through measures that hinder adults’ access to constitutionally protected speech.

In the lawsuit, challengers argued that online age verification unlawfully suppresses adults’ free speech rights and puts them at increasing risk of identity theft, extortion and data breaches.

Some sites, such as Pornhub, have responded by completely blocking access in states with age verification laws.

Opponents say content filtering software and on-device age verification will be more effective at protecting minors than laws like the one in question. They noted that Supreme Court precedents have long protected adult access to non-obscene sexual content, including a 2004 ruling that blocked a federal law similar to the Texas measure.

If the 2004 precedent prevents Texas from enforcing its law, it should be overturned, the state argued.

Texas told the Supreme Court that through smartphones and other devices, children have uncomplicated access to “an avalanche of misogynistic and often violent porn,” including “graphic depictions of rape, strangulation, bestiality and necrophilia.” Much of the content on pornographic sites “is obscene even for adults.”

U.S. District Judge David Alan Ezra issued a preliminary injunction in 2023, blocking the law.

The New Orleans-based 5th U.S. Circuit Court of Appeals ruled in 2024 that plaintiffs were unlikely to succeed in a First Amendment challenge to the age verification requirement, vacating Ezra’s injunction on that provision.

The Fifth Circuit upheld Ezra’s injunction against a separate provision of law requiring websites to display “health warnings” about the effects of viewing pornographic material.

President Joe Biden’s administration has urged the Supreme Court to reject the Fifth Circuit’s decision and order it to rehear the case under more stringent judicial review.