The United States Supreme Court has agreed to decide whether Texas can force pornographic websites to require age verification for users or if it’s a violation of free speech.
In an orders list released Tuesday morning, the high court granted certiorari in the case of Free Speech Coalition et al v. Paxton, Attorney General of Texas, without comment.
Last June, Texas Gov. Greg Abbott signed House Bill 1181 into law. It requires porn sites to verify a user’s age. Any company violating the requirement faces a fine of as much as $10,000 daily.
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The Free Speech Coalition, a group that supports the adult entertainment industry, filed a complaint against Texas Attorney General Ken Paxton over the new law.
In March, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled 2-1 in favor of the age verification law, overturning a lower court decision that blocked its enforcement.
“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” wrote Circuit Judge Jerry E. Smith, a Reagan appointee, for the majority.
“The record is replete with examples of the sort of damage that access to pornography does to children … That is far more than what is necessary to demonstrate that the legislature did not act irrationally.”
Circuit Judge Patrick E. Higginbotham, another Reagan appointee, authored an opinion in which he argued that “the text does not support the argument that H.B. 1181 regulates only obscene speech.”
“H.B. 1181 regulates all material harmful to minors, which necessarily encompasses non-obscene, sexually expressive — and constitutionally protected — speech for adults,” wrote Higginbotham, who concurred in part to the panel opinion.
“Thus, H.B. 1181 limits access to constitutionally protected speech, regardless of whether the viewer is a minor. Such action ‘is to burn the house to roast the pig.'”
That same month, Pornhub announced that it was blocking access to its website in Texas, claiming that the state law was “ineffective, haphazard, and dangerous” and that it violated “the rights of adults to access protected speech.”
“While safety and compliance are at the forefront of our mission, providing identification every time you want to visit an adult platform is not an effective solution for protecting users online,” continued Pornhub.
“Attempting to mandate age verification without any means to enforce at scale gives platforms the choice to comply or not, leaving thousands of platforms open and accessible.”
In late April, the Supreme Court issued a one-sentence miscellaneous order declining to block enforcement of the Texas law while the legal proceedings continued.
