The Supreme Court on Tuesday agreed to hear a challenge to a Texas law that seeks to limit minors’ access to online pornography by requiring age-verification measures such as government-issued IDs.
A trade association, companies that produce sexual material and a performer have challenged the law, arguing that it violates the First Amendment rights of adults.
The law does not allow companies to retain information their users submit. But the challengers said adults would be cautious about providing personal information for fear of identity theft, tracking and extortion.
Judge David Alan Ezraof the federal district court in Austin, blocked the law, saying it would have a chilling effect on free speech protected by the First Amendment.
“By verifying information through government identification, the law will enable the government to gain insight into the most intimate and personal aspects of people’s lives,” wrote Judge Ezra, who was appointed by President Ronald Reagan.
“It risks allowing the state to control when an adult views sexually explicit material and what websites they visit,” he continued. “In effect, the law risks forcing individuals to disclose specific details of their sexuality to the state government in order to gain access to certain expressions.”
A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit disagree“The age verification requirement is rationally related to the government’s legitimate interest in preventing minors from accessing pornography,” Judge Jerry E. Smithwho was appointed by Reagan, wrote for the majority. He was joined by Judge Jennifer W. Elrodwho was appointed by President George W. Bush.
Judge Patrick E. HigginbothamAnother Reagan appointee disagreed, saying the law curtails free speech and could limit adults’ access to popular shows and movies like “Game of Thrones,” “The Color Purple” and “The Girl With the Dragon Tattoo.”
When the majority refused to stay its decision while opponents sought Supreme Court review, Justice Higginbotham said again deviatingin which he said the case “calls for a Supreme Court decision” because the majority opinion “runs counter to Supreme Court precedent.”
In April, the Supreme Court refused to block the law while the appeal was heard.
The majority of the appeals court relied on a 1968 Supreme Court ruling, Ginsberg vs. New Yorkwhich imposed restrictions on the distribution of sexual material to minors, such as what it called “girlie magazines,” which fell broadly within the definition of obscene, which is not protected by the First Amendment.
That decision applied a relaxed form of judicial review. But in Ashcroft vs. American Civil Liberties Union In 2004, the justices blocked a federal law that closely resembled the Texas law. They applied the most demanding form of judicial review: strict review. They ruled that the law impermissibly infringed on the First Amendment rights of adults.
Judge Smith, writing for the Fifth Circuit majority, said the earlier decision was the only one that mattered. He reasoned that the Ashcroft decision contained “startling omissions” that undermined its precedential value.
The challengers, represented by the American Civil Liberties Union and others, told the justices that the Fifth Circuit had no standing to question the Supreme Court.
“This case presents the rare and remarkable example in which an appellate court has blatantly departed from the precedents of this court because it claims to better understand the law,” They wrote.
At the urging of the Supreme Court In order to keep the law in place while considering whether to try the case, Texas Attorney General Ken Paxton said pornography available on the Internet is “far more graphic, violent and degrading than any so-called ‘girlie’ magazine of yesteryear.”
He added: “This law does not prohibit the performance, production or even sale of pornography, but, more modestly, simply requires that the porn industry that makes billions of dollars selling smut take commercially reasonable steps to ensure that those who access the material are adults. There is nothing unconstitutional about it.”
