Supreme Court Rules that Government Can Impose Age Verification Requirements on Porn Sites Subject Only to Limited Privacy Safeguards

Today, the Supreme Court issued a decision in Free Speech Coalition v. Paxton, giving legislatures wide latitude to impose age verification requirements on users wishing to access pornography online. EPIC had submitted an amicus brief in the case urging the Court to take a narrow and nuanced approach that would allow legislatures to force companies to provide special protections for kids online so long as they respected users’ speech and privacy rights. The Court’s decision leaves this regulatory path open, but does not go far enough in incentivizing legislatures to prescribe privacy-protective age assurance methods.

The case presented the question of what level of scrutiny was appropriate for a Texas law that burdened adults’ access to pornography by imposing an age-verification requirement meant to block kids from accessing obscene materials. Free Speech Coalition—a coalition primarily composed of pornography websites—took the extreme position that any law requiring a company to estimate the ages of its users is unconstitutional because it would chill adult users’ willingness to exercise their First Amendment right to access speech. The district court granted an injunction on that basis. The Fifth Circuit reversed, adopting Texas’ equally extreme rebuttal that it is completely constitutional to restrict minors’ access to obscene materials no matter the effects on adult users.

The Supreme Court’s decision ostensibly took the middle ground, subjecting the Texas law to intermediate scrutiny because the law incidentally burdens adults’ protected access to speech. The Court ultimately held that the Texas law passes intermediate scrutiny because it prescribes age-verification methods that pornography websites (and other non-speech companies such as tobacco or firearm sellers) have long used to verify age. The Court interpreted this existing, voluntary pattern of use to indicate that such age verification methods do not substantially chill adults’ access to those sites.

This rule gives legislatures wide latitude to prescribe age assurance methods, but the Court did signal that extremely invasive options are off the table. The Court nodded to the fact that age verification methods that are not in current use, like affidavits from biological parents, would be “excessive burdens” that would not pass scrutiny. By extension, anti-pornography laws that require, e.g., registration with the government, should also not pass scrutiny because they are not historically or widely used in the industry. Unfortunately, the Court did not satisfactorily describe what an “excessive burden” might be. EPIC’s amicus brief had stressed that there are better and worse ways to assure age online, and the Court missed an opportunity to incentivize the development and deployment of privacy-protective age assurance methods.

The Court also missed the opportunity to require legislatures to include adequate statutory privacy protections for personal information collected for age assurance purposes, another thing EPIC urged it to do. Instead, the Court erroneously placed its trust in websites and third parties collecting age assurance data to adequately protect users’ privacy, saying that they have “every incentive to assure users of their privacy.” EPIC’s work over the decades demonstrates the opposite: companies have every incentive to violate users’ privacy unless the government imposes legal obligations requiring them to protect it.

Ultimately, the Court’s decision does not prevent the government from enacting reasonable online privacy and safety regulations for kids—one of EPIC’s primary concerns in this case. The Court echoed EPIC’s view that Supreme Court precedent does not categorically prohibit legislatures from requiring companies to estimate users’ ages to ensure that kids get heightened protections online. The Court also recognized that technology has changed dramatically since the Court’s early precedent was decided, and lower courts must inquire into the factual context of each new internet regulation before opining on its constitutionality—a point that EPIC had emphasized.

EPIC regularly files amicus briefs in cases involving the First Amendment, privacy, harmful platform design, and kids online safety.