In upholding a Texas law requiring age verification to view online pornography, the U.S. Supreme Court June 27 aligned with an earlier proposal from the U.S. Conference of Catholic Bishops.
In 2023, Texas enacted a law requiring certain commercial websites publishing sexually explicit content that is obscene to minors to verify that visitors are 18 or older. The law applies to any website whose content is considered one-third or more “harmful to minors.”
The justices were asked, in Free Speech Coalition v. Paxton, to decide whether the 5th U.S. Court of Appeals should have applied a standard called strict scrutiny.
Representatives of the pornography industry sued Texas Attorney General Ken Paxton, claiming that the law was unconstitutional under the Free Speech Clause of the First Amendment, and that the statute hindered the ability of adults to access online pornography sites.
But the justices ruled in a 6-3 decision that the law “only incidentally burdens the protected speech of adults” and does not fall under the strict scrutiny standard.
In the 50-page document “Create in Me a Clean Heart,” revised several times, most recently in May to mark the 10th anniversary of its issuance, the bishops exhorted civil leaders, “Require age verification requirements on pornographic websites to protect children who are particularly vulnerable to exposure at earlier ages than ever before.”
They emphasized that statement with a quote from the 18th chapter of the Gospel of Matthew: “Whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone hung around his neck and to be drowned in the depths of the sea.”
Pornography used, the document continued, “hurts the user by potentially diminishing his or her capacity for healthy human intimacy and relationships. It presents a distorted view of human sexuality that is contrary to authentic love, and it harms a person’s sense of self-worth. Occasional use can turn into more frequent use that can then lead to an addiction to pornography.”
For the protection of children, the bishops recommended that educators “should prohibit all (nonemergency) use of mobile devices during school hours; teach about the harms of porn beginning in middle school; be mindful and pastoral with students, parents, staff, and volunteers exhibiting signs of loneliness, isolation, or other symptoms of unhealthy private behavior” using a “theology of the body curriculum adapted for appropriate ages.”
The Supreme Court opinion was written by Justice Clarence Thomas, with Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissenting.
Thomas wrote, “The power to require age verification is within a state’s authority to prevent children from accessing sexually explicit content.” He said the Texas law “is a constitutionally permissible exercise of that authority.”
The law’s sponsors, he noted, were concerned with minors’ easy access to “‘hardcore pornographic content and videos,’ many of which depict ‘sexual violence, incest, physical aggression, sexual assault, non-consent, and teens.'” He said they also asserted that “such pornography is ‘addictive,’ has harmful ‘developmental effects on the brain,’ and leads to ‘risky sexual behaviors.'”
The law requires pornography sites to “use reasonable age verification methods … to verify that an individual attempting to access the material is 18 years of age or older.” This can include requiring verification through driver’s licenses or state-issued ID cards.
“At least 21 other states have imposed materially similar age-verification requirements,” Thomas noted, later adding, “Most states to this day also require age verification for in-person purchases of sexual material.”
He wrote that the appellate court viewed the law as a “regulatio(n) of the distribution to minors of materials obscene for minors,” which only incidentally implicates “the privacy of those adults” seeking to access the regulated content.
“History, tradition, and precedent recognize that states have two distinct powers to address obscenity,” Thomas said. “They may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children.”
In their dissent, Justices Kagan, Sotomayor and Jackson wrote, “No one doubts that the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm. Or to say the same thing in legal terms, no one doubts that states have a compelling interest in shielding children from speech of that kind. What is more, children have no constitutional right to view it.”
But the requirements of the Texas law, they argued, “interfere with — or, in First Amendment jargon, burden — the access adults have to protected speech: Some individuals will forgo that speech because of the need to identify themselves to a website (and maybe, from there, to the world) as a consumer of sexually explicit expression.”
The Texas statute, they wrote, leads “under well-settled law, to just one conclusion: H.B. 1181 (the law at stake) is subject to strict scrutiny. Take a law burdening protected speech based on its content … and the standard of review follows in its wake.”
In November 2024, the USCCB filed an amicus brief in the case, with a particular focus on the use of smartphones by children increasing their potential expose to the dangers of online pornography.
“Given the rise of smartphones,” it stated, “if states like Texas cannot respond legislatively to the increased risks of ubiquitous pornography in the hands of children, then parents and religious communities will be left to fight this vicious plague alone. And it is likely to be a losing battle.”
Kurt Jensen writes for OSV News from Washington.
