Supreme Court Ruling Restarts Porn Age Verification Fight

By Jim Saunders, The News Service of Florida

TALLAHASSEE — In a ruling that has implications for a battle over a similar Florida law, the U.S. Supreme Court on Friday upheld the constitutionality of a Texas law requiring age verification for access to websites with pornographic content.

The court, in a 6-3 decision, said the Texas law does not violate First Amendment rights and that at least 21 other states — including Florida — “have imposed materially similar age-verification requirements to access sexual material that is harmful to minors online.”

As the Supreme Court weighed the Texas case in January, Tallahassee-based U.S. District Judge Mark Walker issued a stay of a lawsuit challenging the constitutionality of the Florida law. Walker on Friday quickly lifted the stay and gave directions to lawyers, including about filing “supplemental arguments now that the Supreme Court has provided additional guidance as to the applicable level of scrutiny that applies to plaintiffs’ claims.”

Friday’s majority opinion, written by Justice Clarence Thomas, said age-verification laws “fall within states’ authority to shield children from sexually explicit content.”

“The First Amendment leaves undisturbed states’ traditional power to prevent minors from accessing speech that is obscene from their perspective,” said the opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.”

But Justice Elena Kagan, in a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, said the age-verification requirement would burden the First Amendment rights of adults who want to view websites with pornographic content.

“Texas can of course take measures to prevent minors from viewing obscene-for-children speech,” Kagan wrote. “But if a scheme other than H. B. 1181 (the Texas law) can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A state may not care much about safeguarding adults’ access to sexually explicit speech; a state may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a state cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children.”

Florida lawmakers passed the age-verification requirements in 2024 as part of a broader bill (HB 3) that also seeks to prevent children under age 16 from opening social-media accounts on some platforms. The social-media part of the bill drew a separate constitutional challenge, with Walker this month issuing a preliminary injunction to block it on First Amendment grounds.

The Free Speech Coalition, an adult-entertainment industry group, and other plaintiffs filed the lawsuit challenging the pornography-related part of the law. The Free Speech Coalition also has been a plaintiff in the Texas case.

The Florida lawsuit centers on part of the law that applies to any business that “knowingly and intentionally publishes or distributes material harmful to minors on a website or application, if the website or application contains a substantial portion of material harmful to minors.” It defines “substantial portion” as more than 33.3 percent of total material on a website or app.

In such situations, the law requires businesses to use methods to “verify that the age of a person attempting to access the material is 18 years of age or older and prevent access to the material by a person younger than 18 years of age.”

The lawsuit raises objections about how the law would apply to minors and adults, including saying it “demands that, as a condition of access to constitutionally protected content, an adult must provide a digital proof of identity to adult content websites that are doubtlessly capable of tracking specific searches and views of some of the most sensitive, personal, and private contents a human being might search for.”

The lawsuit also alleges that the law does not properly differentiate between older minors and younger children.

In addition to alleging violations of First Amendment rights, the lawsuit contends that the law violates due-process rights, the U.S. Constitution’s Commerce Clause and what is known as the Supremacy Clause — issues that were not addressed in Friday’s opinion about the Texas law.