The U.S. Supreme Court on Tuesday said it will consider a challenge to a hotly debated Texas law which requires platforms offering adult content to check all users’ ages before allowing access to sexually explicit material.

The free speech case, brought by a pornography industry coalition, seeks to overturn the 2023 law, which mandates that users of adult content sites provide government-issued identification, digital identification or a “commercially reasonable method that relies on public or private transactional data” to prove they are of age.

Plaintiffs’ attorneys, including the American Civil Liberties Union, say such age verification is unconstitutional.

“In requiring adults to provide information over the Internet to ‘affirmatively identify themselves,’ such as through their ‘government ID,’ the Act creates a ‘substantial chilling effect’ by exposing adults to the ‘risk of inadvertent disclosures, leaks, or hacks,’” the ACLU and co-counsel Quinn Emanuel wrote in their petition to the court.

The law already has changed the way porn sites operate in Texas. Prominent adult site Pornhub began blocking Texas users in March rather than comply with the law, which it called "haphazard and dangerous." 

In April, the Supreme Court declined to put the law on hold while the appeal progressed, so it is currently in effect and includes fines of up to $10,000 per violation by a given site. If a violation involves a minor, the fine can surge to $250,000 per violation.

The plaintiffs’ petition to the court points out the inherent dangers of identification being submitted online in an era where data breaches and hacks are rampant.

While the entity performing age verification “may not retain any identifying information of the individual,” the petition said, the “transmission of that information is not prohibited, and the Act establishes no monitoring or reporting requirements for entities performing age verification.” 

The plaintiffs also underscored that because the law does not bar the external transmission of adults’ information, including to the government, adults may rightly worry about “state monitoring” of their viewing choices.

“The deterrence is particularly acute because access to sexual material can reveal intimate desires and preferences,” the petition added.

The case will be argued and decided sometime between this October, when the Supreme Court’s next term begins, and June 2025, when it concludes.

Seven other states have similar age verification laws on the books and many others have enacted laws that will go into effect across the next year.

Sign of the times?

Plaintiffs’ attorneys cheered the Supreme Court’s decision to hear the case, saying a lower court’s ruling “wrongly allowed the government to rob adults of their online privacy and burden their access to protected speech, all under the guise of protecting children,” Vera Eidelman, staff attorney with ACLU’s Speech, Privacy, and Technology Project, said in a statement.

“Unfortunately, this isn’t the first time that such concerns have led legislators to pass unconstitutional laws,” Eidelman added. “Over the years, we’ve seen similar misguided laws about everything from drive-in movies to video games to websites, and courts have repeatedly struck these laws down.”

The landmark case comes as legislatures across the country are grappling with how to better protect children online, said Megan Iorio, senior counsel at the Electronic Privacy Information Center.

The Supreme Court has historically “not looked favorably” at age-gating content, she said.

“But there have been significant changes in technology since [past precedent] and the availability of privacy-protective age assurance methods may change the constitutional analysis,” Iorio said. 

“If the Court finds the Texas law unconstitutional, it would still leave open a wide range of content-neutral design regulation options that are likely more effective at protecting kids online than content restrictions,” she added.

In its petition, the ACLU and co-counsel pointed to ample case law that has protected portrayals of sex, quoting a prior decision which referred to it as “a great and mysterious motive force in human life [that] has indisputably been a subject of absorbing interest to mankind through the ages.”