War on Texas law requiring ID to savor smut online heads to Supreme Court

Talk about painfully invasive processes

A Texas law requiring adults to show their ID to access online pornography will be heard by the US Supreme Court, setting up a potential domino effect that could undo - or reinforce - similar laws in 18 other states.

The appeal to SCOTUS was filed in April by groups headed by the Free Speech Coalition, the trade association that represents the American skin-flick industry. The coalition's submission came after the Fifth Circuit Court of Appeals ruled in March the age verification component of the Texas law could stand, while striking down the legislation's requirement for health warnings to be displayed with adult content on the grounds they were unconstitutionally compelled speech. 

The Supreme Court today announced [PDF] it would hear the case, Free Speech Coalition, et al v. Paxton, at a future date.

"Despite proponents' claims, online age verification is simply not the same as flashing an ID at a checkout counter," said coalition executive director Alison Boden. "The process is invasive and burdensome, with significant privacy risks for adult consumers.

"Sexual expression is the canary in the coal mine of free speech, and we look forward to defending the rights of all Americans to access the internet privately and free from surveillance," Boden added.

The legislation in question, Texas House Bill 1181, was signed into law in June last year and requires any website with more than a third of its material deemed inappropriate to minors to verify that visitors are over the age of 18. Websites that refuse to comply can face fines of $10,000 per day, and a one-off hit of $250,000 if a minor accesses the site. 

Ostensibly designed to keep X-rated content away from kids, the law drew immediate criticism from online privacy advocates and the adult industry, the latter of which challenged it as the ink dried on the statute books. A Texas judge struck the law down in September, 2023, calling it a violation of free speech rights that was overly broad and vague. 

"People will be particularly concerned about accessing controversial speech when the state government can log and track that access," Judge David Ezra wrote in his opinion. "By verifying information through government identification, the law will allow the government to peer into the most intimate and personal aspects of people's lives."

Texas attorney general Ken Paxton's team appealed to the Fifth Circuit, which reversed the lower court's decision. The Free Speech Coalition then immediately appealed to the Supreme Court for a stay of the age verification enforcement, which SCOTUS denied later that month before deciding today to hear the case.

The Texas AG's office hasn't responded to questions. 

Texas is not the first US state to decide that adults need to hand over personal data for the privilege of accessing smut on the web - it was actually the sixth state to enact such a law.

As has been the case in other states with similar identity-requirement laws, smash-hit smash site PornHub has chosen to completely block access in Texas rather than comply with the rules and demand people's ID. The site is similarly offline to Arkansas, Mississippi, Montana, North Carolina, Virginia, and Utah, and will soon be inaccessible in Indiana, Kentucky, and Florida when similar legislation in those places take effect.

The Free Speech Coalition has challenged several of those laws, including in Indiana, where a judge last week granted a stay to the FSC and its co-plaintiffs and stopped the legislation from going into effect.

PornHub has previously argued that such laws don't actually ultimately prevent minors from accessing online smut, and instead push them toward websites that lack safety measures. 

EFF associate director of digital strategy Jason Kelly previously argued that laws in Utah, Louisiana, and Texas, which bar adult websites from retaining personal info used to verify identities, don't include any guarantees that such sites will actually do so, casting further doubt on the ability of such laws to keep the identities of porno perusers safe. 

If the Supreme Court sides with the Free Speech Coalition, the result could be the unraveling of those other laws, too. When that may be is still unknown, as SCOTUS hasn't scheduled a date for oral arguments in the case. The top court's next argument session begins in October. ®

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