Pornhub blocks Montanans from access in response to Senate Bill 544. (Screenshot.)
The Supreme Court agreed to review a case arguing that Texas’s age verification “porn ID” law infringes on constitutionally-protected free speech for adults. The law requires web-based age verification on sites with at least one-third of their content devoted to adult sexual material. Now the Supreme Court will solicit arguments and briefs about the case.
Age verification bills have gained traction since Louisiana passed a law in 2022. Nineteen states have passed age verification bills, according to a tracker from the Free Speech Coalition, the adult industry’s trade group, which is one of the plaintiffs in this Texas case.
Texas HB 1811 went into effect on Sept. 1, 2023, though enforcement was paused by a district judge in Texas. In November, the U.S. Court of Appeals for the 5th Circuit stayed the injunction and the law has been in effect since. The original law also required targeted websites comprising at least one-third sexually explicit content to display an unscientific warning about the dangers of pornography, but that provision is permanently blocked.
“Despite proponents’ claims, online age verification is simply not the same as flashing an ID at a check-out counter. The process is invasive and burdensome, with significant privacy risks for adult consumers,” Alison Boden, the executive director of the Free Speech Coalition, wrote in a statement to The 19th. “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.”
The Texas attorney general’s office did not reply to a request for comment.
“This case is really about whether a content-based regulation that burdens adults’ access to protected speech has to be merely ‘reasonable’ to satisfy the First Amendment, because it was passed in the name of protecting kids from sexual material online,” said Vera Eidelman, staff attorney at the ACLU Speech, Privacy and Technology project.
“Typically, when those kinds of content-based regulations limit what adults can see and access, those kinds of regulations are subject to the most rigorous test that a court could apply in a First Amendment case,” she said.
Digital rights groups have decried web-based age verification as a privacy disaster. Generally, sites ask users to upload photographs of government identification to confirm their age, or use artificial intelligence to assess age from a selfie. Both approaches open up concerns about how third party companies store and share sensitive data.
The Texas law requires companies offering age verification services to delete information, but the protections are weak in a world where data breaches continue to rise.
In an online statement, Pornhub, one of the country’s largest free streaming pornography sites, wrote that its site traffic in Louisiana dropped 80 percent one month after adding age verification checks. The company claims age verification deterred users and sent them to “irresponsible” sites that did not comply with the law.
The burden of web-based verification — where a user has to share their personal information every time they access a site, heightening privacy risks — pushes people to less-regulated sites, where illegal content flourishes. After years of fighting by survivors, sex workers and journalists, Pornhub began requiring consent forms for all people appearing in videos uploaded to the site. This has cut down on illegal content such as child sexual abuse material and recordings of sexual assault. Other sites do not have such safeguards, imperfect as they may be in practice, in place.
While these laws are most consequential for large sites specializing in adult content such as Pornhub, xHamster or Chaturbate, the effects trickle down beyond the tech companies. Performers, many of whom are women, queer, trans or disabled, rely on advertising on these sites to drive audiences to paid content. Compensation doesn’t necessarily come directly from free sites, but it facilitates many income streams.
Politicians advocating for the laws have labeled pornography as a “public health crisis” and several states have passed resolutions deeming it as such. These statements claim pornography contributes to sex trafficking, hypersexualization of youth and body image issues, in addition to negative health outcomes and potential effects on brain development. There is research to back up some of these claims, such as the impact of sustained pornography viewing on sexual aggression in young adults, but more is needed.
“The Supreme Court is right to review this case,” Eidelman wrote over email after the Supreme Court agreed to hear the case. “The Fifth Circuit’s ruling wrongly allowed the government to rob adults of their online privacy and burden their access to protected speech, all under the guise of protecting children. Unfortunately, this isn’t the first time that such concerns have led legislators to pass unconstitutional laws.”
Research on the effects of pornography is often contradictory, and the biological- and health-focused language used by anti-pornography advocates makes it difficult to distill the truth. It is also difficult to ethically study the effects of pornography viewing on children, and one of the most meaningful indicators of negative mental health effects due to viewing pornography is whether someone finds the media immoral.
In a brief urging the Supreme Court to hear the case, the International Centre for Missing and Exploited Children, a global nonprofit fighting child abduction, trafficking and sexual abuse, characterized web-based age verification as “an ineffective solution” to prevent children from accessing adult content. The group voiced concerns that if laws mandating web-based age verification were upheld, lawmakers would not push for more effective controls such as device-based content filtering.
Critics of the law have pointed out that the largest repositories of adult content online, and some of the easiest for children to access, were explicitly excluded: online search engines. The law is aimed at sites producing pornography, but the one-third content rule commonly used among most states’ laws is ill-defined. Kansas’s bill, set to go into effect July 1, lowers the threshold to 25 percent.
“I think that it’s fair to say that this law reaches any kind of salacious content, which includes things like sex education videos,” Eidelman said, which parents might want to be accessible — and for their kids to be able to access them anonymously.
It is unlikely that the Texas state attorney general will use these laws to go after bookstores, which technically distribute content online, or Hollywood streaming sites like Netflix, but the laws are potentially broad enough to apply to a wide range of businesses.
In other states, including Louisiana and Utah, the age verification laws also allow adults to sue distributors of adult content for “damages resulting from a minor’s accessing the material,” opening up many different companies to potential liabilities.
