An age-old question Texas defends requiring ID for porn to SCOTUS: Weve done this forever SCOTUS likely to find Texas' age-gating of porn unconstitutional, expert says. Ashley Belanger Jan 15, 2025 2:38 pm | 166 Credit: Aurich Lawson | Getty Images Credit: Aurich Lawson | Getty Images Story textSizeSmallStandardLargeWidth *StandardWideLinksStandardOrange* Subscribers only Learn moreOn Wednesday, the Supreme Court heard arguments that could determine if a Texas age-gating law preventing kids from accessing pornography online is overly burdensome for adults. A ruling against Texas could put an end to allegedly invasive age-verification laws in nearly 20 states.A decision isn't expected until summer 2025, so it's too soon to say which way the court is leaning.The question before the court is whether the 5th Circuit was right to stay a preliminary injunction that had previously been blocking Texas from enforcing the law or whether that decision should be reversed and remanded based on the level of constitutional scrutiny that the 5th Circuit applied.Texas and the 5th Circuit agreed that a rational basis for limiting access to speech, which is the lowest level of scrutiny, applied.But the Free Speech Coalition (FSC) and the American Civil Liberties Union (ACLU) sued Texas, arguing that strict scrutiny may be necessary. The civil rights groups claim that the statutory languagerequiring age-gating on any site where porn comprises a third of its contentrisks blocking adults from accessing protected speech, including both sexual and potentially non-sexual content, if adults wish to avoid showing ID on any given site.A lawyer for groups suing, Derek Shaffer, told justices Wednesday that everyone agrees that Texas has a compelling interest in restricting minors from accessing adult content online.But Shaffer warned that he thinks that while Texas is genuine in raising these concerns, the state allegedly has a "broader anti-porn interest in preventing willing adults from accessing this content." He accused Texas of designing the law to require more restrictive means for age-gating specifically to chill speech, ditching methods like content-filtering because allegedly "they want to make it more difficult" and "more costly" for adults to access porn.At the heart of the case is a question that justices raised repeatedly throughout the hearing: Where do states draw the line when verifying users' ages online?If judges agree that Texas' requirement of an ID or transactional data (like employment or bank records) to access adult content is no more burdensome than requiring an ID for gambling sites or to buy porn at a brick-and-mortar store, an important precedent could be set that could cement age-gating laws similar to Texas' law that have been passed in almost 20 states.Shaffer argued that requiring a government ID is "especially chilling" of adult speech and pointed out that Texas currently has no digital ID available that could be considered a less restrictive way to verify age.The porn industry, including Pornhub owner Aylo, has long advocated for device-based age verification. Still, justices questioned whether that might put the cost of protecting kids from obscene content online on phone makers like Apple or Google rather than the sites being regulated.Aylo declined to comment on today's arguments, instead referring Ars to the FSC and ACLU.Eric Goldmanan Internet law expert who joined other experts in filing a brief explaining how online age authentication," as required by Texas' law, "is more problematic than the offline age authentication procedures" SCOTUS has previously approved. He blogged about the trial, predicting that Texas may have lost. He wrote that his "view is that the Supreme Court isnt likely to take Texas bait and will not agree with the Fifth Circuits apathetic level of constitutional review."In a post-trial statement, Shaffer called on all states passing age-verification laws to "consider less restrictive, more effective solutions than the approach taken by Texas... We hope the Court will confirm the need to apply strict scrutiny to laws that burden and chill adults exercise of their First Amendment rights, and we look forward to the Courts decision."Texas law doesnt protect kids, groups argueGroups suing have asked SCOTUS to not just reverse and remand to the 5th Circuit, but also provide clear guidelines if heightened scrutiny applies, perhaps even directly stipulating that the preliminary injunction must be reinstated as the litigation continues.Also weighing in was a Department of Justice attorney representing the US, Brian Fletcher, who warned the court that he shared their "discomfort" with potentially "watering down strict scrutiny" by siding with Texas.Shaffer urged the court that Texas' age-verification law as implemented "will chill" speech and "will be invading privacy." Further, the ACLU said that it's not protecting kids, who can easily use a VPN to mask their location or access non-compliant adult sites where they could be possibly exposed to even more online risks that popular commercial sites like Pornhub say they more aggressively combat."You can use VPNs, the click of a button, to make it seem like you're not in Texas," Shaffer argued. "You can go through the search engines, you can go through social media, you can access the same content in the ways that kids are likeliest to do."Texas attorney Aaron Nielson argued that the problem of kids accessing porn online has only gotten "worse" in the decades since Texas has been attempting less restrictive and allegedly less effective means like content filtering. Now, age verification is Texas' preferred solution, and strict scrutiny shouldn't apply to a law that just asks someone to show ID to see adult content, Nielson argued."In our history we have always said kids can't come and look at this stuff," Nielson argued. "So it seems not correct to me as a historical matter to say, well actually it's always been presumptively unconstitutional. But we've done it forever. Strict scrutiny somehow has always been satisfied."Like groups suing, Texas also asked the Supreme Court to be very clear when writing guidance for the 5th Circuit should the court vacate and remand the case. But Texas wants justices to reiterate that just because the case was remanded, that doesn't mean the 5th Circuit can't reinstitute the stay on the preliminary injunction that was ordered following the 5th Circuit's prior review.On rebuttal, Shaffer told SCOTUS that out of "about 20 other laws that by some views may look a lot like Texas'" law, "this is the worst of them." He described Texas Attorney General Ken Paxton as a "hostile regulator who's saying to adults, you should not be here.""I strongly urge this court to stick with strict scrutiny as the applicable standard of review when we're talking about content-based burdens on speakers," Shaffer said.In a press release, Vera Eidelman, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project, said that efforts to childproof the Internet not only hurt everyones ability to access information, but often give the government far too much leeway to go after speech it doesnt likeall while failing to actually protect children."Ashley BelangerSenior Policy ReporterAshley BelangerSenior Policy Reporter Ashley is a senior policy reporter for Ars Technica, dedicated to tracking social impacts of emerging policies and new technologies. She is a Chicago-based journalist with 20 years of experience. 166 Comments