Supreme Court Allows, for Now, Texas Law Restricting Access to Porn

The Supreme Court refused on Tuesday to block a Texas law that seeks to limit minors’ access to pornography on the internet by requiring age verification measures like the submission of government-issued IDs.

As is the court’s custom in rulings on emergency applications, its brief order gave no reasons. There were no noted dissents. A petition seeking review of an appeals court’s ruling upholding the law remains pending.

A trade group, companies that produce sexual materials and a performer challenged the law, saying that it violates the First Amendment right of adults.

The law does not allow companies to retain information their users submit. But the challengers said adults would be wary of supplying personal information for fear of identity theft, tracking and extortion.

Judge David Alan Ezra, of the Federal District Court in Austin, blocked the law, saying it would have a chilling effect on speech protected by the First Amendment.

“By verifying information through government identification, the law will allow the government to peer into the most intimate and personal aspects of people’s lives,” wrote Judge Ezra, who was appointed by President Ronald Reagan.

“It runs the risk that the state can monitor when an adult views sexually explicit materials and what kind of websites they visit,” he continued. “In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech.”

A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit disagreed. “The age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” Judge Jerry E. Smith, who was appointed by Reagan, wrote for the majority. He was joined by Judge Jennifer W. Elrod, who was appointed by President George W. Bush.

Judge Patrick E. Higginbotham, another Reagan appointee, dissented, saying that the law chills free speech rights and could limit adults’ access to popular shows and films like “Game of Thrones,” “The Color Purple” and “The Girl With the Dragon Tattoo.”

When the majority declined to put its decision on hold while the challengers seek Supreme Court review, Judge Higginbotham again dissented, saying that the case “begs for resolution by the high court” because the majority opinion “conflicts with Supreme Court precedent.”

After the Fifth Circuit’s ruling, Pornhub, one of the most-visited sites in the world, suspended its operations in Texas.

The appeals court’s majority relied on a 1968 Supreme Court decision, Ginsberg v. New York, which allowed limits on the distribution to minors of sexual materials like what it called “girlie magazines” that fell well short of obscenity, which is unprotected by the First Amendment.

That decision applied a relaxed form of judicial scrutiny. But in Ashcroft v. American Civil Liberties Union in 2004, the justices blocked a federal law quite similar to the one from Texas, applying the most demanding form of judicial review, strict scrutiny, to find that the law impermissibly interfered with adults’ First Amendment rights.

Judge Smith, writing for the Fifth Circuit majority, said the earlier decision was the one that mattered. He reasoned that the Ashcroft decision contained “startling omissions” that undercut its precedential force.

The challengers, represented by, among others, the American Civil Liberties Union, told the justices that the Fifth Circuit was not entitled to second-guess the Supreme Court.

“This case presents the rare and noteworthy instance in which a court of appeals has brazenly departed from this court’s precedents because it claims to have a better understanding of the law,” they wrote.

In urging the Supreme Court to leave the law in place while it considers whether to hear an appeal, Ken Paxton, Texas’ attorney general, said pornography available on the internet is “orders of magnitude more graphic, violent and degrading than any so-called ‘girlie’ magazine of yesteryear.”

He added: “This statute does not prohibit the performance, production or even sale of pornography but, more modestly, simply requires the pornography industry that make billions of dollars from peddling smut to take commercially reasonable steps to ensure that those who access the material are adults. There is nothing unconstitutional about it.”

The plaintiffs had also challenged a second part of the law requiring sites to post “public health warnings” about the harmful effects of pornography, saying that the First Amendment bars such compelled speech. Judge Ezra and all three members of the Fifth Circuit panel agreed, and the challenge to that provision is not part of the Supreme Court case.