The Supreme Court’s three liberal justices dissented from the majority’s decision Friday to uphold a Texas law requiring porn websites to verify user ages, slamming the opinion authored by Justice Clarence Thomas as “at war with itself.”
The court’s six conservative justices ruled that the Texas law, which seeks to block children from accessing adult content online, did not violate the First Amendment.
But the Democratic-appointed justices pushed back, arguing First Amendment interests are still at risk for adults with this law.
“The State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary,” wrote Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
“The majority’s opinion concluding to the contrary is, to be frank, confused,” she continued. “The opinion, to start with, is at war with itself.”
Kagan acknowledged the dangers of sexually explicit content for children, but said this does not outweigh free speech concerns, warning the law may unintentionally impede adults’ access to sexual content.
“So adults have a constitutional right to view the very same speech that a state may prohibit for children,” Kagan wrote. “And it is a fact of life — and also of law — that adults and children do not live in hermetically sealed boxes.”
She raised whether Texas is doing the “best” it can to avoid restricting adults’ free speech, and, if so, suggested it should pass the strict scrutiny test.
“But what if Texas could do better — what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech [the Texas law] covers?” she asked.
The plaintiff, Free Speech Coalition, a trade association representing the adult entertainment, echoed this sentiment, arguing the law violates the First Amendment by creating barriers for adults to access the websites.
At the heart of the case was whether the age verification requirement needed to clear a higher level of scrutiny associated with the First Amendment, known as strict scrutiny. The majority found that a lower standard applied, which the law “readily survives,” Thomas wrote.
Kagan said states should not be allowed to restrict adults’ access to protected speech if it is not necessary.
“The majority is not shy about why it has adopted these special-for-the-occasion, difficult-to-decipher rules,” she wrote. “It thinks they are needed to get to what it considers the right result: giving Texas permission to enforce its statute.”
“But Texas should not receive that permission if it can achieve its goal as to minors while interfering less with the speech choices of adults,” she continued, adding, “For that reason, the majority’s analysis is as unnecessary as it is unfaithful to the law.”
Friday’s decision could make it easier for other states’ porn age verification laws to withstand challenges. As technology increases minors’ access, nearly 25 states in the U.S. have passed similar measures related to adult content.
