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Supreme Court Won’t Halt Texas Age Verification for Online Porn

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OPINION: This article may contain commentary which reflects the author's opinion.


In a decision that pitted the Republican-led state’s attempt to keep adult content away from minors against constitutional protections for free speech, the U.S. Supreme Court declined to strike down a Texas law that requires online age verification to access pornographic websites.

The justices rejected a motion from a trade association representing adult entertainment performers and other law challengers to stay a lower court’s decision that the measure probably did not violate the First Amendment protections against government interference with free speech, with no dissents noted in the public record.

“The 2023 law requires any websites whose content is more than a third “sexual material harmful to minors” to require all users, including adults, to submit personally identifying information verifying they are at least 18 years old to gain access. Several other states have enacted similar laws,” Newsmax reported.

“The Texas law’s challengers, represented by the American Civil Liberties Union and others, have said that it poses security and privacy concerns by exposing users to possible identity theft, tracking, and extortion. They also said that its effectiveness is undermined given that it would not restrict social media or search engines, where pornography is rampant,” the outlet added.

The challengers countered that laws like this are not the most effective way to protect minors; content-filtering software does.

Given the Supreme Court’s precedents that treat non-obscene sexual content as constitutionally protected, the plaintiffs argue that the case is simple. Based on these precedents, governments can restrict minors’ access to sexual material, but they cannot restrict adults’ access to such content because of the First Amendment.

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Texas claims that the need for its law stems from the fact that children can now more easily and instantaneously access “virtually unlimited” hardcore pornography thanks to smartphones.

The law, Texas said in a filing, “simply requires the pornography industry that (makes) billions of dollars from peddling smut to take commercially reasonable steps to ensure that those who access the material are adults.”

The plaintiffs include businesses that operate multiple pornographic websites, such as xnxx.com and Pornhub.com, as well as the Free Speech Coalition, a trade association of adult content creators, distributors, and performers.

The day before the law was enacted, Senior U.S. District Judge David Alan Ezra in Austin issued a preliminary injunction to stop it. “Constitutionally protected speech will be chilled,” according to Ezra, and this could include non-porn websites that show R-rated films or materials on sex education for high school kids.

The 5th U.S. Circuit Court of Appeals, located in New Orleans, upheld the law’s enforcement while it considered the case. In March, the court declared that the plaintiffs’ First Amendment challenge to the age verification requirement was unlikely to succeed, overturning Ezra’s injunction on that particular provision.

The 5th Circuit maintained the judge’s injunction against another law provision mandating that websites post “health warnings” regarding the potential harms of pornography.

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Last month, the U.S. Supreme Court declined to hear a challenge to Texas’ voting rules, which allow seniors to automatically vote by mail but not younger people.

The court pointed out that some states, such as Indiana, Kentucky, Louisiana, Mississippi, South Carolina, and Tennessee, have similar regulations that allow elderly voters to request an absentee ballot for any reason, while younger voters can only do so in specific circumstances. Otherwise, they must vote in person, and many do so only after producing a valid ID.

The court’s choice not to entertain the appeal from three Texas voters mirrors its prior dismissal of a comparable challenge to Indiana’s voting laws in 2021.

The Texas Democratic Party filed earlier iterations of the lawsuit in Texas during the COVID-19 pandemic, but the high court declined to consider them.

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The challengers argued that the unequal treatment of voters amounts to age-based discrimination, which goes against the 26th Amendment. This amendment, ratified in 1971 to lower the voting age to 18, states that the right to vote “shall not be denied or abridged…on account of age.”

“Whatever voting rights a state grants to people aged 65 and over, it must also grant to people under 65,” the Texas voters told the Supreme Court in their unsuccessful appeal.

They asked the higher court to overturn a ruling by an appeals court that Texas’ voting regulations are constitutional, arguing that making it easier for some people to vote does not make it harder for others.

Earlier, the 5th U.S. Circuit Court of Appeals in New Orleans said that the right to vote did not include the right to vote by mail when the 26th Amendment was made law.

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