A majority of the Supreme Court appeared to signal on Wednesday that Texas may be allowed to require some form of age verification for pornographic sites, but left open the possibility that deeper First Amendment questions may not be resolved immediately.
After two hours of oral argument, the court’s conservatives seemed to agree that states should be able to impose some kind of requirement to ensure that minors cannot easily access obscene material online. However, several justices flagged concerns about their ruling potentially affecting other First Amendment rights.
Texas’ law, which requires users to submit proof of adulthood, is similar to more than a dozen other states that have similar laws. But the porn industry challenged the law, arguing that it chills the ability of adults to access protected content.
The court appeared skeptical of the industry’s argument, and seemed likely to offload some of the thornier First Amendment questions to a lower court. A decision is expected by this summer.
During the oral arguments, several conservative justices expressed skepticism about the idea of using content filtering software as a solution to the problem of minors accessing pornography online. Chief Justice John Roberts and Justice Samuel Alito were among those who questioned the usefulness of this approach, suggesting that it was not a reliable method for preventing minors from accessing explicit material.
Justice Amy Coney Barrett drew from personal experience when she said that content filtering was far from foolproof, citing her own children’s ability to access explicit material through various devices. Justice Brett Kavanaugh and Alito also expressed doubts about content filtering, with Alito noting that parents may not be more tech-savvy than their children.
The court’s consideration of the Texas law also touched on the question of whether the law was an appropriate response to the state’s interest in protecting minors from the material. While the justices generally supported the Texas law, it was unclear whether they would apply the highest level of legal scrutiny to the law, which would make it difficult for it to stand.
The adult entertainment industry appeared to have at least one ally on the high court: liberal Justice Sonia Sotomayor, who emphasized that the court has repeatedly applied the highest level of legal scrutiny when deciding similar cases.