On Jan. 15, 2025, the Supreme Court heard arguments in an important case about protecting kids from pornography—Free Speech Coalition, Inc. v. Paxton. This case will determine if a Texas state law protecting children from being exposed to pornographic material online through requiring some websites to implement age verification will be able to remain in place.
The ERLC filed an amicus brief in conjunction with both the Southern Baptists of Texas Convention (SBTC) and the Baptist General Convention of Texas (BGCT) supporting this law in November, highlighting:
- Southern Baptists’ opposition to pornography in any form,
- desire to protect children from exposure to it,
- and belief that the state has a responsibility to protect children from such material.
The ERLC remains supportive of a strong First Amendment and argues that, as the Founders originally intended and as years of precedent have indicated, free speech protections do not apply to sexually explicit material.
A decision in this case is expected in May or June of 2025.
What is the protecting kids from pornography case about?
In June of 2023, the Texas state legislature passed House Bill 1181, which requires any websites that distribute “sexual material harmful to minors” to verify users are 18 or older to allow them to use the website. These standards would apply to any websites that “knowingly and intentionally” publish or distribute harmful sexual material, provided the website’s content consists of at least one-third such material.
In order to implement these standards, websites are required to implement a process known as “age verification” by which companies can verify the age of their users through a number of different means. This may include requiring a user to submit a photo of his or her driver’s license, other official government identification, or biometric data proving the age of the user to allow access to the website.
The pornography industry has strongly opposed this law in Texas as well as similar laws passed in 20 other states. The lawsuit at the center of this particular case calls into question the constitutionality of age-verification laws, arguing that such policies violate the free speech of the entities themselves and, as a result, the court should implement a standard known as “strict scrutiny” to evaluate the constitutionality of such laws.
“Strict scrutiny” is the same standard by which the federal government enforces federal laws related to religious liberty and is the highest legal standard that must be met by the government. To overcome strict scrutiny, it must be demonstrated that the government has sought the least restrictive means possible to accomplish a “compelling government interest.”
In response to these arguments, Texas has maintained that a lower standard of review is more appropriate, but even if strict scrutiny were applied, their law still meets this test as the least restrictive means available to effectively prohibit minors from being exposed to this harmful content, something long held as a compelling governmental interest. As the ERLC’s brief argued:
The legislation at issue in this case—Texas H.B. 1181—is precisely this kind of public policy,” reads the brief. “It was enacted with the purpose and effect of shielding minors from the well-documented developmental harms of pornography. The amici believe it is an abundantly good law. But more importantly for the purposes of this case, it is also abundantly constitutional.
What issues in the protecting kids from pornography case were raised by the justices?
Justice Sotomayor expressed support for applying the standard of “strict scrutiny” on the basis of legal precedent. Additionally, Justice Jackson questioned if implementing age verification placed a burden on adults and prohibited their ability to access pornography, resulting in a potential application of the strict scrutiny standard.
Several of the conservative justices questioned applying the standard of strict scrutiny because adults still had access to these websites and were not prohibited from generally accessing these sites, meaning that the legal precedent that may require strict scrutiny would not apply. They also compared this law to similar laws that require age verification for minors to access obscenity in physical locations.
A majority of the justices seemed in agreement that pornography presents significant harms to children, that the government has a role to play in protecting children from such harm, and that previous attempts to do so through content filtering and parental controls have not been sufficient.
What happens next in the protecting kids from pornography case?
The court will now spend the next few months deliberating and drafting an opinion in this case before releasing the final decision, likely in May or June. The Supreme Court seems likely to return this case to the Fifth Circuit or to rule on the merits of the case in favor of upholding Texas’ law.
If the court rules in support of the state of Texas and allows this law to remain in effect, it would set a helpful precedent for similar state laws protecting children from the lasting harm of pornography across the country. Regardless of how this case is decided, the ERLC will continue to work to protect children from pornography and other harmful content online.