SCOTUS to hear radicals' challenge to Texas law that protects kids from the ravages of pornography

The U.S. Supreme Court is set to hear arguments in the case Free Speech Coalition, Inc. v. Paxton, which concerns commercial entities' ability to peddle graphic and often brutal pornographic content online without ensuring that impressionable children are not among their users.

The outcome of this case could prove consequential, not just for the porn industry and the well-being of American children nationwide but for social media and other platforms where age restrictions could also play a role in preventing the corruption of youth.

Jon Schweppe, policy director at the American Principles Project, which filed an amicus brief with the Supreme Court supporting Texas' law, told Blaze News, "We have 19 states that have passed these bills. 83% of the country supports age verification, so there's no question that this is something that the people and their legislatures want, and now it's up to the court to decide whether it wants to be in the way of that or not — and I don't think they will."

Texas is among the many red states that have passed age verification laws in recent years to protect children from harmful content online.

In the case of the Lone Star State's law, HB 1181, commercial entities that publish or distribute sexual material harmful to minors must verify that individuals attempting to access that material are at least 18 years old or older. Failure to do so could result in civil penalties. Additionally, pornography peddlers must display health warnings noting that "pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function."

The legal blog Howe on the Court noted that after Texas successfully passed HB 1181 in June 2023, a smut-industry trade association challenged its enforcement, claiming that the age verification violated the First Amendment by impacting adults' access to constitutionally protected expression.

Whereas a federal district court obliged the pornographers, temporarily preventing the enforcement of the law and suggesting that it was identical to the Child Online Protection Act — which the Supreme Court indicated was likely unconstitutional in Ashcroft v. ACLU — the U.S Court of Appeals for the Fifth Circuit lifted the injunction, leaning on the Supreme Court's 1968 decision in Ginsberg v. New York that cleared the way for states to restrict minors' access to harmful sexual material.

The case has now been kicked to the Supreme Court, which rejected a request last year to reinstate the lesser court's injunction against the Texas law.

'There's no way ... that if you can't age-verify for porn, it's going to be constitutional to age-verify for social media.'

Brad Littlejohn, a fellow at the Ethics and Public Policy Center, told Blaze News that the case before the court primarily concerns which standard of review the court of appeals should have applied to determine whether the injunction should stand — rational basis or strict scrutiny. The Free Speech Coalition, which advocates for pornographers and others in the sex industry, figures the Texas law should be subjected to strict scrutiny.

"If the court says, 'Yeah, strict scrutiny applies to any attempts to age-verify online,' then it's a lot harder going forward for states that are trying to protect minors from pornography or, just in general, any attempt to say, 'We think it's important to know whether or not someone online is a minor or not,'" said Littlejohn.

Schweppe indicated that if the pornography coalition wins in this case, there could be significant downstream effects, not just regarding pornography sites but also social media.

"There's no way, for example, that if you can't age-verify for porn, it's going to be constitutional to age-verify for social media," said Schweppe. "This case is really going to be determinative of what types of common-sense regulations we can put on the internet."

Littlejohn noted that the petitioners' "argument comes down to really camping out on the Ashcroft position 21 years ago."

Congress passed the Child Online Protect Act in 1998 with the aim of restricting minors' access to pornography online. The American Civil Liberties Union and various publishers sued to prevent its enforcement, arguing that the child protection law infringed upon their free speech rights. The case, Ashcroft v. the ACLU, ended up before the Supreme Court, which ultimately held in a 5-4 ruling that Congress had failed to demonstrate that the requirements under the law were more effective than other means of protecting kids from pornography online.

"They basically say that nothing has changed in the meantime. The biggest part of the Ashcroft claim was that age verification technology was not really viable to do it in a way that was privacy-preserving, and that may have been true in 2004. It's ridiculous to say that is true in 2025," said Littlejohn. "The other thing about the Ashcroft case is that they said content filtering will work just fine. That was plausible in a world of mostly desktop computers, not plausible in the world where most households have dozens of internet devices."

The petitioners' case "relies on kind of saying, 'Let's put our heads in the sand and pretend nothing's changed since 2004 and let's just stick with that precedent,'" added Littlejohn.

"There's some misconceptions about age verification," said Schweppe. "People tend to think that it must mean only a state ID. And part of our arguments to the court is that the technology in 30 years has improved dramatically to the point now where you know they can actually verify your age without knowing who you are. They can do biometric scans. They can look at consumer data and determine if you're an adult or not."

Texas Attorney General Ken Paxton noted in a May opposition brief that were the porn peddlers fighting the law "brick-and-mortar bookstores or sidewalk magazine stands, Ginsberg v. New York would permit Texas to require them to check the age of their customers before selling them pornography. Petitioners instead insist that because they have moved their business online, the First Amendment allows them to provide access to nearly inexhaustible amounts of obscenity to any child with a smartphone."

Paxton stressed that "far from prohibiting a substantial amount of protected speech, [HB 1181] does not prohibit speech at all but rather only requires pornographers to check the ages of their users."

Texas maintains that the law is essential because the proliferation of smartphones and the overabundance of pornography have led to a public health crisis.

Porn is 'associated with the erosion of the quality of men's sex lives ... lower levels of sexual self-competence, impaired sexual functioning, and decreased partner-reported sexual satisfaction.'

Sens. Mike Lee (R-Utah), Rep. Chip Roy (R-Texas), and 20 other Republican lawmakers in the U.S. Senate and House hammered this point home in a November court brief, noting that since the high court's 2004 ruling in Ashcroft, smartphones are now everywhere and have exponentially increased in capability, providing children fast access to pornography glamorizing rape, incest, and other forms of physical abuse, effectively harming and desensitizing generations of Americans.

"H.B. 1181 is a constitutional exercise of state power under any relevant standard of review. But subjecting such age verification laws to strict scrutiny could unduly hamstring amici and their states' ability to pass laws," continued the lawmakers. "Internet pornography is a plague that causes harm to millions of American children. This case is about federal and state legislatures' power to protect children from exposure to online pornography. This Court should reaffirm its long-standing rule that the government can prohibit the dissemination of pornography to children by imposing age-access restrictions on distributors."

There is plenty of scientific literature indicating that pornography wreaks havoc on viewers' minds and health, particularly that of young people.

A June 2023 Israeli study published in the scientific journal Body Image indicated a link between pornography consumption and both negative body image and the increased severity of eating disorder symptoms.

A February 2022 study published in the journal Psychological Medicine found that porn is "associated with the erosion of the quality of men's sex lives" — "associated with lower levels of sexual self-competence, impaired sexual functioning, and decreased partner-reported sexual satisfaction."

The Australian government determined that pornography consumption by young people has served to "normalize sexual violence and contribute to unrealistic understandings of sex and sexuality."

A 2014 study revealed that watching porn actually could shrink a part of the brain linked to pleasure.

Littlejohn noted that since the case before the court concerns the narrow question of whether to uphold the preliminary injunction against the law as well as which standard of review should be applied to determine whether the injunction should stand — rational basis or strict scrutiny — there "could be a whole other stage where the law is tried on the merits."

"So it's quite possible the court gives a decision that doesn't really give a clear victory and kind of kicks the can down the road," added Littlejohn.

"We're optimistic," said Schweppe. "We think that the court will basically overturn previous precedent they have. If you look at Reno v. ACLU and Ashcroft v. ACLU, the court elevated what they would consider the free speech concerns of adults over the compelling state interest of protecting kids. Obviously that hasn't worked out very well, so we're asking the court to review a law that was similar to the law they struck down in the 1990s."

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