Does requiring pornography viewers to provide identification verifying their age violate the First Amendment — or is it a necessary safety measure to protect children from easily accessing sexual content?

That is a debate central to a legal battle over a Texas law that requires pornographic platforms to verify users’ ages before they can access lewd content. The Supreme Court is set to hear arguments on January 15 in the case, Free Speech Coalition v. Paxton, after the Fifth Circuit left Texas’s age verification mandate in place. 

Texas is far from the only state that has implemented such a law — since 2022, more than a dozen states have passed similar measures that require sites with a “substantial portion” of sexual content to collect identification of its users or refer users to a third party age verification service. In response to this slew of state laws, Pornhub has pulled out of Virginia, Montana, North Carolina, Arkansas, Utah, Mississippi, Texas, Nebraska, Idaho, Kansas, Kentucky, Indiana, Alabama, and Oklahoma, a representative tells the Sun. 

On January 1 — when new state laws requiring age verification went into effect in Florida and South Carolina — Pornhub started blocking users in those states as well. An age verification law was also set to go into effect in Tennessee on January 1 but was paused by a federal district court this week, pending litigation. 

Pornhub’s parent company, Aylo, tells the Sun that the company supports age verification of its users but that the way many jurisdictions have gone about it is “ineffective, haphazard, and dangerous.”

“Any regulations that require hundreds of thousands of adult sites to collect significant amounts of highly sensitive personal information is putting user safety in jeopardy,” the representative said. The company argues that users will find porn on shadier areas of the internet to evade handing over their personal information. When Pornhub complied with a similar law in Louisiana last year, the company says that its site traffic there dropped by 80 percent.

“These people did not stop looking for porn,” the representative says. “They just migrated to darker corners of the internet that don’t ask users to verify age, that don’t follow the law, that don’t take user safety seriously, and that often don’t even moderate content.” A better solution to protect children from accessing porn, the statement notes, is to target the individual devices, including using parental controls.

At the heart of the upcoming Supreme Court case is whether the Fifth Circuit used the proper standard when it used rational-basis-review to keep Texas’s law in place, holding that the “age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography” and therefore that the law does not violate the First Amendment. An adult entertainment trade association, the Free Speech Coalition, argues that the court should instead apply strict scrutiny when burdening adults’ access to protected speech.

“Americans hold a wide range of views about sexual content online. Some view it as offensive or indecent; for others, it is artistic, informative, or even essential to important parts of career and life,” Free Speech Coalition’s brief notes. “Consistent with the bedrock First Amendment principle that ‘esthetic and moral judgments about art and literature … are for the individual to make, not for the Government to decree,’ this Court has long treated non-obscene sexual content as constitutionally protected for adults.”

The online verification that Texas mandates “poses severe risks to Internet users that do not arise during in-person identification checks,” the brief notes, adding that demanding identification online creates a “substantial chilling effect.”

“Adults who submit, for example, a ‘government ID’ over the Internet to ‘affirmatively identify themselves’ understand that they are thereby exposing themselves to ‘inadvertent disclosures, leaks, or hacks,’” the group argues. Because data breaches have become so high profile and commonplace, the chilling effect is “worse than ever now.” The law fails to protect private information from being transferred to third parties including the government, the porn industry argues, creating a risk of “state monitoring” of what websites Americans are visiting. 

Texas, for its part, has defended its law as a measure to address a “public health crisis” and insisted that the state has not restricted “adult access to pornography.” 

“Through smartphones and other devices, children to- day have instantaneous access to unlimited amounts of hardcore pornography—including graphic depictions of rape, strangulation, bestiality, and necrophilia,” Texas’s attorney general, Ken Paxton, notes in the state’s brief. “Childhood access to this avalanche of misogynistic and often violent smut ‘is creating a public health crisis.’” 

The state argues that it would have the right to ensure that brick-and-mortar bookstores don’t sell porn to children, but that the porn industry seeks to evade this responsibility since it has moved its business online. 

“Let me put this simply: these companies do not have a right to expose children to pornography,” Mr. Paxton said in a statement ahead of the Supreme Court arguments, noting that the state has a “clear interest” in protecting minors. 

“Several of these companies, when faced with a choice between protecting children from pornography and complying with Texas law, have stopped doing business in Texas,” he said. “Good riddance.”