SCOTUS rules to uphold Texas age verification law in high-profile case

In the high-profile U.S. Supreme Court case of Free Speech Coalition v. Paxton, the court has ruled 6-3 in favor of the Texas attorney general, upholding the constitutionality of age verification legislation and marking a significant victory for the age assurance industry in the world’s largest market.

Burden on free speech from proof of age is incidental

The opinion, written by Justice Clarence Thomas, holds that Texas HB 1181 “triggers, and survives, review under intermediate scrutiny because it only incidentally burdens the protected speech of adults.”

“The First Amendment leaves undisturbed the States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech.”

“It follows that no person – adult or child – has a First Amendment right to access such speech without first submitting proof of age.”

On LinkedIn, Tony Allen of the Age Check Certification Scheme and the Age Assurance Technology Trial – and an expert witness in the SCOTUS case – identifies the preceding statement as a “key line in the judgment.” The observation also aligns with an amicus brief filed in the case by the Age Verification Provider’s Association (AVPA) last November.

SCOTUS’ decision thus sets a legal precedent for age verification requirements on sites hosting age-restricted content. It means that – as is already happening in the UK and Europe – U.S. lawmakers will be free to make age assurance mandatory for porn sites, and, crucially, enforce compliance. It also means that many more people in the U.S. are about to start having to prove their age when they want to access porn.

There is a possibility that more porn sites will cease operations in the U.S., as they have already done in select states. But as age checks become law in more and more places, the industry will have to weigh how far it can push – or pull out. Restricting access in response to laws is ineffective if laws are functionally everywhere. And just this week, a gaggle of porn sites publicly pledged to implement robust, highly effective age assurance for UK users, to comply with Ofcom’s incoming regulations.

There may be doubts among adult content providers about regulatory capacity to make good on legal threats, as there have been leading up to enforcement deadlines in the UK and Europe. But so far, regulators across the pond have proven more than willing to get the fight underway.

Furthermore, a few state age assurance laws have written into them a private right of action – meaning noncompliant sites could face a barrage of private class action suits from mortified parents (as has already happened in Kansas).

Porn sites could be facing a hard place and two rocks: follow the law, shut down, or face endless litigation and hefty fines. Pilots to test biometric age verification measures have shown quite clearly that they drastically choke traffic; PornHub, one of the largest porn sites in the world, says that when it implemented age verification measures in Louisiana, which has a widely used and trusted mobile driver’s license, traffic dropped by 80 percent.

Which means the SCOTUS opinion could have a wider dampening effect on the mass consumption of pornography online.

The key will be finding creative and persuasive ways to convince people that biometric age verification can and does preserve privacy. VerifyMy recently teamed up with UK-based adult content performer Ivy Maddox on a video reading of the Online Safety Act. It is a stunt – but one  that hints at a likely need for deeper collaboration between the two industries, in the effort to reassure nervous users that no one will find out what they look at after dark.

Ruling sets ‘clear legislative precedent’: VerifyMy

Industry response has been overwhelmingly positive. Lina Ghazal, head of regulatory and public affairs at VerifyMy, says “today’s ruling by the Supreme Court clears a key obstacle in the path to a safer internet. It will reassure parents across Texas about the type of content their children can access online and lay out a legislative blueprint for other states to follow to keep explicit material in the hands of adults only.”

“Methods like email-based or facial age estimation are tools adult websites can easily implement, with minimal impact on user experience. What has been missing is a clear legislative precedent, ensuring every platform plays by the same rules nationwide.” Now, she says, “children’s safety must now be embedded into the foundation of every platform.”

Julie Dawson, chief regulatory and policy officer at Yoti says, “today the United States Supreme Court recognized that the online world needs to follow the same rules that apply to brick-and-mortar stores, especially when it comes to pornography.”

“We welcome this landmark decision, which not only affirms the constitutionality of age verification laws like HB 1181, but also acknowledges how far age assurance technology has come: it is now fast, accessible, privacy-preserving, and legal in the United States.”

Iain Corby, executive director of the Age Verification Providers Association (AVPA), says “we expect this judgment to accelerate the adoption of age verification laws across the remaining 26 U.S. states and globally. We look forward to working with both regulators and the adult industry to implement systems that are simple for users, including being reusable and interoperable across platforms.”

NetChoice still litigating age checks for social media

Despite the SCOTUS ruling, the legal gamesmanship over age assurance laws will continue; there is still the question of age checks for social media platforms, and a powerful tech lobby fighting against the idea.

This week, a federal judge has temporarily blocked a Georgia law that requires parental consent for kids under 16 to create a social media account. The decision is the latest in a long line of challenges brought by NetChoice, the tech lobby group representing Silicon Valley’s biggest and richest companies, on the grounds that minimum age requirements and their attendant age assurance rules violate the First Amendment.

The 50-page ruling from U.S. District Judge Amy Totenberg says that “SB 351 purports to regulate minors’ social media use for their own good. But the State has carved out dozens of arbitrary exemptions and, in oral argument, downplayed the rigor of its parental consent requirements. The State certainly has the authority and ability to provide children and parents with education, resources, and tools to understand the detriments of social media and engage with the internet in a healthier and more productive way.”

“But the challenged portions of SB 351 do not do so. Instead, the act curbs the speech rights of Georgia’s youth while imposing an immense, potentially intrusive burden on all Georgians who wish to engage in the most central computerized public fora of the twenty-first century. This cannot comport with the free flow of information the First Amendment protects.”

The decision indicates that social media firms might have an easier go than pornographers of convincing the courts that their platforms are havens for free speech.

NetChoice has previously successfully sued for temporary injunctions in Mississippi, Texas, Florida, Utah, Arkansas, Ohio and California – but has had less success in Tennessee, where a judge ruled that the compliance costs NetChoice says would cripple their business are “quite ordinary and are routinely borne.”

Article Topics

age verification  |  AVPA  |  biometrics  |  children  |  Free Speech Coalition v. Paxton  |  legislation  |  Netchoice  |  Texas  |  Texas age verification