WASHINGTON — Thanks to the internet and smartphones, children today have instant access to vast amounts of online pornography, much it graphic, violent and degrading, Texas state attorneys told the Supreme Court on Wednesday.
They urged justices to restore the rules of an earlier era, when X-rated theaters and bookstores had an adults-only policy.
Last year, Texas enacted an age-verification law that requires pornographic websites to confirm their users are 18 or older.
Lawyers for 23 other Republican-led states joined in support of Texas, saying they have or plan to adopt similar measures.
The court’s conservative justices signaled they are prepared to uphold these new laws.
They noted that age-verification rules are now common for online gambling and for buying alcohol or tobacco online.
But more importantly, they pointed to the dramatic change in technology and the easy availability of hardcore pornography.
“We are in an entirely different world,” said Chief Justice John G. Roberts Jr. He said that warrants reconsidering rulings from decades past that invoked the 1st Amendment to strike down anti-pornography measures.
In one such ruling, the court in 2004 said parents and librarians could use filtering software to protect children from pornography.
Justice Amy Coney Barrett said parents have long known that “online filtering is not working” and “kids can get online porn from phones and tablets.”
In the past, she said the court had no problem upholding laws that prevent bookstores from selling sexually explicit books or magazine to children or teens.
“Why is this different?” she asked.
Washington attorney Derek Shaffer, who represented the adult entertainment industry that challenged the Texas law on 1st Amendment grounds, argued the Texas law could have a “chilling effect” on adult customers who may be leery of providing personal information needed to verify age and identity.
Texas state solicitor Aaron Nielsen said the new age-verification systems allow customers to confirm their age online without directly contacting a particular website.
“Age verification is simple, safe and common,” he said.
The justices and the attorneys spent most of their time on what free speech standard should apply to such a law.
In the past, the court said anti-pornography laws must be viewed with “strict scrutiny.” Usually, that resulted in narrowing or striking down such laws.
By contrast, the 5th Circuit Court allowed the Texas law to take effect because it was a “rational” means of protecting children.
Several of the justices said they would vote to uphold the Texas law, but they may also agree to send it back to the 5th Circuit Court for a second hearing.
Republican-led states pointed to a growing pornography problem.
“The average child is exposed to internet pornography while still in elementary school,” wrote state attorneys for Ohio and Indiana. “Pornography websites receive more traffic in the U.S. than social media platforms Instagram, TikTok, Netflix, and Pinterest combined.”
