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The ruling, in Free Speech Coalition v. Paxton, has major implications for the accessibility of any online speech the government could decide is harmful to children.
The decision ultimately means that laws can restrict the free speech of adults in service of protecting children.
This story was originally reported by Jasmine Mithani of The 19th. Meet Jasmine and read more of her reporting on gender, politics and policy.
The Supreme Court ruled 6-3 on Friday that age verification “porn ID” laws are an appropriate way to regulate content for minors without infringing on the First Amendment rights of adults.
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The ruling, in Free Speech Coalition v. Paxton, has major implications for the accessibility of any online speech the government could decide is harmful to children.
Laws that potentially curb civil liberties are subject to rigorous legal standards. Two lower courts had applied different standards to the Texas law, and the Supreme Court decided that the 5th U.S. Circuit Court of Appeals’ lower standard was correct in this case. Strict scrutiny, the standard applied by the Texas district court, requires that a law must be narrowly tailored, further a compelling government interest and be the least restrictive option. The 5th Circuit used a lower standard, known as rational basis, to evaluate the law, essentially saying it has no potential to jeopardize freedom of speech.
Writing for the majority, Justice Clarence Thomas held that the law should be evaluated based on intermediate scrutiny, the standard in between, because it only “incidentally burdens the protected speech of adults.” Laws must further an important government interest and do so by “means substantially related to that interest.” Texas’ law survives this test, Thomas wrote. Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, dissented.
By saying the law does not have to meet strict scrutiny, the opinion paves the legal way for increased site-based age verification on the web. The privacy concerns accompanying the uploading of verifiable identification to sensitive websites are not seen as overly burdensome to adults.
Consequently, the court ruled restrictions on protected free speech for adults can be applied in the name of protecting children.
In 2023, Texas passed a law requiring websites with at least one-third sexual content — characterized as “material harmful to minors” — to verify the age of users using government identification or other reliable techniques. The law was initially blocked by a district judge, but then the preliminary injunction was overruled by the 5th U.S. Circuit Court of Appeals. The law has been in effect while the Supreme Court considered the case.
Many digital civil rights groups have raised the alarm over privacy risks of web-based age verification. Texas, like the majority of states, does not have a state-recognized digital identification system. Websites would need to contract with a third- party company that handles photos of physical IDs or runs face-scans to determine the age of users. The risk is compounded as a user typically must verify their age every time they try to view a page. Device-based age verification, where pieces of technology like phones or computers are age-locked, generally only requires identification once.
Critics of age verification laws worry how state governments will determine what kinds of content qualify as “harmful to minors,” especially as right-wing extremists increasingly characterise any type of LGBTQ+ media as inappropriate for children — or outright consider the existence of queer people to be pornographic. The ability to easily access information about reproductive health or dissenting political opinions could be targeted by laws championing children down the line.
