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Supreme Court grapples with online porn explosion



The Supreme Court weighed whether an explosion of online pornography requires repudiating court precedents on sexual content, as justices heard arguments Wednesday in a challenge to Texas’ age-verification law for pornographic websites.

A majority of the justices suggested that the concept of an age verification requirement could survive First Amendment scrutiny, though the court appeared willing to send the Texas law to a lower court to apply a standard of higher revision.

Several of the court’s conservatives argued that age verification may be the only real option for states to protect children from adult websites, because the content filtering methods the court approved as an alternative two years ago decades are no longer viable.

“Kids can get porn online through gaming systems, tablets, phones and computers. Let me just say that content filtering for all these different devices, I can say from personal experience, is hard to keep up with” , said Judge Amy Coney Barrett, who has seven children.

“So I think the explosion of new porn addiction online has shown that content filtering doesn’t work,” he continued.

“For 15-year-olds, whatever, it was very difficult to access the kinds of things that are available at the push of a button today. And I think the nature of pornography has also changed in those 35 years,” he said. Chief Justice John Roberts.

The law, passed by the Texas legislature in June 2023, required sites hosting adult content to verify that their users are over 18.

Nearly 20 other states have passed similar laws related to adult content, and age verification has become an increasingly popular option for states seeking to limit young children’s access to social media .

The Texas law also requires sites to post a warning that pornography is “potentially biologically addictive, has been shown to impair human brain development, desensitize the brain’s reward circuits, increase conditioned responses, and weaken brain function.”

The Free Speech Coalition, a trade association representing the adult entertainment industry, sued Texas Attorney General Ken Paxton (R) in August 2023. Backed by the American Civil Liberties Union, the group has argued that the law violates the First Amendment by creating barriers for adults. access websites that contain adult content.

Paxton began enforcing the law last February, filing lawsuits against major porn companies, including Pornhub’s parent company Aylo, for failing to comply with the age verification requirement. As a result, Pornhub disabled service in the Lone Star State.

The trade association insists its lawsuit should follow a line of Supreme Court cases in which justices have held restrictions on pornography to a demanding standard.

“The Texas law is even more problematic than its failed federal predecessors,” said Derek Shaffer, an attorney with the Free Speech Coalition.

In those precedents, the high court applied “strict scrutiny,” the toughest test judges use when weighing constitutional challenges. It requires showing that a law is the least restrictive means, and judges in 2004 noted an alternative to content filtering methods that allow parents to block content on their children’s devices.

But on Wednesday, several conservative justices questioned whether to overturn their decades-old endorsement, given technological changes that have made adult content more accessible than ever.

“There are cases where technological advances caused the court to reconsider precedents that had developed under, not just horse and buggy days, but before very important changes. Now, why isn’t that a relevant factor to consider here,” Roberts said.

Justice Clarence Thomas noted that earlier cases involved “squiggly lines in cable television” and “a dial-up Internet world.”

“However, you would admit that we are a completely different world,” Thomas said.

The Biden administration has also joined the case, arguing that the court should rule that the law is held to a stricter standard, while clarifying that the First Amendment does not prevent states, as well as Congress, from enacting laws to prevent children from accessing content, even by age. verification requirements.

“Now, the verification requirement has become less onerous and experience has shown that other approaches don’t work,” said Senior Deputy Attorney General Brian Fletcher.

Congress has expressed growing concern about children’s online safety. In July, the Senate approved Child Online Safety Act (KOSA) with overwhelming bipartisan support.

The move was intended to create regulations for features that technology companies offer to children and counter the addictive nature and mental health effects of these platforms. However, the legislation stalled in the House over free speech issues.

On Wednesday, conservatives on the Supreme Court expressed concern that declaring the Texas law subject to strict scrutiny may cause the legislation to fail when it returns to lower courts. Several judges made it clear that age verification requirements are generally permissible as long as they are not too burdensome for adult access.

The liberal justices indicated that the court should perhaps limit its review of the case to deciding the appropriate test and leave it to lower courts to analyze the specific facts of Texas law.

“This is strict scrutiny,” said Justice Sonia Sotomayor. “To apply anything else would be to overrule at least five precedents.”

“If content filtering is no longer as effective as we thoughtAshcroft,and I see from my colleagues that that is probably true, that would depend on whether this law meets strict scrutiny because age verification is more effective,” he added.

Judge Ketanji Brown Jackson also suggested that new technological advances could cut both ways.

“On the one hand, we have a new set of circumstances that allow minors to obtain this material very easily, and it’s ubiquitous,” he said. “But I think the petitioner’s argument is that the technology actually increases the risks and burdens for adults trying to access this material.”

The porn industry has stressed that age-verification measures could pose risks to adults’ privacy, especially given the high frequency of data breaches in today’s society and the sensitive nature of the types of sexual content that people choose to consume.

“It’s not clear to me that just the fact that we have new technology is all in favor of allowing this law to remain as it is,” Jackson added.

The Texas law was temporarily blocked by US District Judge Alan Ezra in September 2023, shortly before it took effect. However, the decision was partially overturned by the US Court of Appeals for the 5th Circuit, allowing the age verification portion of the law to go into effect.

If the Supreme Court overturns the lower ruling and remands the case, the immediate fate of the law is unclear. The parties anticipated a likely battle in the 5th Circuit to block implementation while the court considers the next phase of the case.

“I am asking, at the very least, that the language be clear for the 5th Circuit to know that it can reinstate the statute. That gets lost in translation sometimes when you get a decision from this court,” said Texas Attorney General Aaron Nielson.



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