【Western Archives】

On Jan. 15,Western Archives 2025, the Supreme Court heard a case about age-verification laws, Free Speech v. Paxton. Its decision will significantly impact online free speech. 

Age-verification laws vary by state but typically require users to submit identification in order to visit sites the states deem to have over one-third of explicit content hosted. ID can include submitting one's driver's license, a digital ID, or a facial scan. Since 2022, 19 states have passed age-verification laws, and all but one is currently in effect. The other, Georgia's, goes into effect July 1, 2025. Pornhub currently blocks 17 statesfrom viewing content due to these laws. 

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Free Speech v. Paxton explained

The Free Speech Coalition v. Paxton case initially began as a challenge to Texas's age-verification lawby the adult industry trade organization, the Free Speech Coalition or FSC. 

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The perceived purpose of these laws is to stop children from looking at porn. But FSC argues that age-verification laws don't stop children from accessing porn sites (due to technology like VPNs), and instead have a chilling effect — stopping adults from accessing content they have the right to access, out of fear of privacy breach, data collection, or documentation of what explicit material they look at. 

A Texas judge initially blocked the state's age-verification lawdue to FSC's challenge, but the Fifth U.S. Circuit Court of Appeals upheld it. That appeals court, however, struck down a part of the Texas law that would require adult sites to post health warnings about porn.

The Supreme Court agreed to hear the caselast July but said the law could remain in effectbefore the hearing (which will likely continue during litigation, according to NBC News).

Ahead of the hearing, Texas Attorney General Ken Paxton argued that the Supreme Court should reject the appeal for the law, asserting that material on such sites is obscene(and the First Amendment does not protect obscenity), and pointed to the 1968 Supreme Court case Ginsberg v. New York, which concluded that material that isn't obscene may still be "harmful to minors."

During Wednesday's hearing, multiple Supreme Court Justices, including Chief Justice John Roberts and Justice Clarence Thomas, argued that the internet is different than the media argued about in Ginsberg ("girlie" magazines). That signaled that the Ginsberg precedent over these issues might not suffice — but there have been multiple Supreme Court cases about porn since 1968, including 2004's Ashcroft v. ACLU, when the court ruled that a requirement for online publishers to prevent minors from seeing "harmful content" was unconstitutional. 

"We thought the law was very clear 20 years ago when the federal government tried to do this and the Ashcroft decision was handed down, and Reno," legal counsel for sexual freedom nonprofit Woodhull Freedom Foundation, Lawrence G. Walters, told Mashable. The latter case he referred to is Reno v. ACLU, a 1997 decision that determined prohibiting "indecent" online speech violated the First Amendment.

How can these laws pass despite the Supreme Court's precedent? The argument, Walters said, is that access to porn is different now, driven by technological advances and the pervasiveness of smartphones. "But really, not much has fundamentally changed," Walters explained. "Hardcore porn was available on the internet when Ashcroft was decided."

The Free Speech Coalition maintained its argument about the chilling effect of age verification. FSC's lawyer instead spoke in favor of device-level filtersto prevent children from accessing explicit content, which the conservative justices Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh were skeptical about.

Ultimately, the justices must decide which standard to use to review Texas's age-verification law: strict scrutiny (a rigorous review, as in Ashcroft) or rational basis review (which is less strict, as in Ginsberg). FSC is arguing for the former. Justice Elena Kagan said that relaxing strict scrutiny could have "spillover dangers" to other free speech cases.

Arguments for and against age-verification laws

A repeated argument during the hearing was whether online age verification is the same as flashing one's ID at a liquor store. The problem with this comparison, as Woodhull Freedom Foundation asserts, is that flashing one's ID isn't storing one's data (such as one's license information or biometric data like facial scans); there's no third-party access to information; it's not vulnerable to hackers; and it's not complicated as an online age-verification system may be.

"Texas completely failed to appreciate the substantial privacy and security risks at issue and continued to incorrectly suggest that online age verification — which requires millions of internet users to upload and submit identifying information — is no different than quick, one-on-one, in-person ID checks," said Electronic Frontier Foundation staff attorney Lisa Femia in a statement.

"The Texas law robs adult internet users of anonymity, exposes them to serious privacy and security risks, and blocks some adults entirely from accessing sexual content that’s protected under the First Amendment," Femia said.

Another argument, both at the hearing and at a rally outside the Supreme Court by the conservative political advocacy group, American Principles Project, is that one needs to provide an ID to do other activities online. Hence, age verification is "common sense."

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"You have to verify your age to buy alcohol online, you verify your age to buy nicotine, even nicotine patches, and you need to verify your age to gamble online," said American Principles Project president Terry Schilling. "You need to verify your age in order to access hardcore and violent pornography."

But this isn't an apples-to-apples comparison. Buying alcohol and gambling isn't a protected right in our Constitution.

"There's no First Amendment right to gamble. There's no First Amendment right to buy alcohol,"  Walters told Mashable. "What makes this different is it's speech. It's protected speech. You have the right to access protected speech as an adult. And so all of the other analogs [comparisons] that they're talking about do not apply."

In terms of whether this content — "hardcore and violent" pornography (research points to porn not inciting violent crime) — is obscene, thus not protected by the First Amendment, Walters said there hasn't been any obscenity determination to any content involved in this lawsuit. "All media is presumed to be protected unless there is a determination of obscenity," said Walters.

The American Principles Project, which held the rally, has a deeper interest in furthering age verification. The group is on the advisory board of Project 2025, the conservative policy blueprint for Donald Trump's second presidential term.

Age-verification and Project 2025

Project 2025 is a 900+ page document that calls for many changes in the U.S., including banning pornographyand imprisoning its creators. While age verification isn't an outright porn ban, it's a "back door" to one. 

So said Project 2025 co-author Russell Vought, who Trump asked to return as director of the Office of Management and Budget. In a secret recording (by a paid actor and British journalist), Vought admitted that age-verification laws are a "back door"to a broader porn ban.

"We came up with an idea on pornography to make it so that the porn companies bear the liability for the underage use," Vought said, "as opposed to the person who visits the website getting to just certify" they're of-age, which was the status quo before these laws.

Vought added, "We’d have a national ban on pornography if we could, right?"

The Supreme Court decision on age-verification laws 

Wednesday's hearing was just that: a hearing. A decision will likely come this summer, according to CNN. However, there's already commentary about the decision, like CNN saying the judges lean towards supporting Texas's age-verification law. But you can't tell how a case will be decided based on comments at oral argument, Walters said. 

There are several ways the decision can come down. The Supreme Court could find Texas's age-verification law unconstitutional and unsuitable to strict scrutiny. Walters explained that the highest court would then send it down to the Fifth Circuit and say they made the wrong decision.

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Another outcome is that the Supreme Court sends the decision back down to the Fifth U.S. Circuit, saying they used the wrong standard of rational basis when they should use strict scrutiny.

Yet another possibility is that the Supreme Court decides that rational basis is the current standard, and the law doesn't need to hold up to strict scrutiny. In that case, Texas's age-verification law would stand. 

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The stakes of Free Speech Coalition v. Paxton

Over the last several years, we have seen how information online gets blocked and shadowbanned, partly due to laws. FOSTA/SESTA(a set of bills that was supposedly anti-trafficking but in practice has done more harm to sex workersthan to curb sex trafficking) has led to major social media platforms removing or shadowbanning educationaland artistic sexual content, especially if it's from accounts of LGBTQ people, women, and people of color. 

Banks, credit card companies, and financial apps have also barred sex workersand sites with sexual content, making this content more difficult to access. Banks have started closing accounts of non-sex workers, as well.

It's not just online content that is in danger, either. Conservatives are driving book bansand threatening access to birth controland the abortion pill. 

The attacks on sexual freedom and online expression are like a pointillism painting: up close, you see the individual dots. If you pull back, you see the picture, explained Ricci Levy, president and CEO of the Woodhull Freedom Foundation.

"Pull back and see the whole picture of all the attacks on everything to do with our sexual selves," she said. 

Free Speech Coalition v. Paxton isn't an isolated case. Depending on how the Supreme Court rules, online content could become more censored.

"There could be a number of other subjects that the state tries to restrict access to," Walters said. "Reproductive rights information, abortion, guns, politics, you name it. And so this case is going to set the standard of what the government is allowed to get away with in restricting access by adults" to this content.

"There's so much riding on this case," said Levy. "It's really the future of the internet…I don't believe it's going to stop here."

"There isn't a carve-out in this law to address educational materials, LGBTQ resources," Levy continued. She mentioned Vought's "back door" comment leading to the goal of the ban on pornography. "It's part of a larger attack on sexuality in this country." 

The issue isn't about whether children can look at porn; neither porn creators nor sex worker advocates want that. "It's not about children, not really," Levy said. "It's about eliminating access to pornography or pornography as a whole."

Topics Porn Privacy Politics