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SALT LAKE CITY — The Supreme Court will hear a case on a Texas law requiring pornographic websites to verify the ages of their users that may have implications for Utah.
The first Monday in October marks the start of a new session for the country's top court. The Free Speech Coalition, a trade group representing the adult entertainment industry, sued Texas over its law, arguing it violated the free speech clause. Oral arguments have not yet been scheduled, but the eventual ruling could have implications for several other states, including Utah.
Louisiana was first in passing a law requiring pornography websites to verify the ages of users and block children from accessing it. Several other states, including Utah, followed. Utah's law was also challenged by the Free Speech Coalition, though a judge upheld the law.
Sen. Todd Weiler, R-Woods Cross, and Rep. Susan Pulsipher, R-South Jordan, sponsored Utah's age verification bill in 2023. Lawmakers on both sides of the aisle unanimously voted in favor of the measure.
U.S. District Judge Ted Stewart dismissed the suit filed by the Free Speech Coalition without prejudice. "They just cannot receive a pre-enforcement injunction against the two named defendants," said Stewart in the order. The two Utah officials sued did not have a specific ability to enforce the law, said Stewart, and so claims against both of them were dismissed. The Free Speech Coalition filed a notice of appeal.
The judge in the Utah case did not address whether or not the law violated the First Amendment, but the Texas case will.
Strict scrutiny
After Texas was blocked from enforcing its law, it appealed to the U.S. Court of Appeals for the 5th Circuit, where a panel of three judges reviewed the case. Two of the judges said the Free Speech Coalition was not likely to succeed on its challenge.
These two judges said the appropriate legal test in this case was rational-basis review. This kind of judicial review test is when judges look at whether or not a law has a state interest and if the law actually furthers that state interest.
It is a less strict legal test than strict scrutiny — the constitutional test the other judge said needs to be used. In a strict scrutiny test, the government would need to show a compelling government interest and explain how the law was narrowly tailored to meet that interest.
The judge said the Texas law "limits access to materials that may be denied to minors but remain constitutionally protected speech for adults. It follows that the law must face strict scrutiny review because it limits adults' access to protected speech using a content-based distinction — whether that speech is harmful to minors."
The Free Speech Coalition went to the Supreme Court and filed an emergency appeal, asking it to block the law. The court did not grant the emergency appeal, which meant the law was still in effect.
When the Supreme Court hears oral arguments on the Texas law, it is likely the decision will address what kind of legal test should be employed in this case: strict scrutiny or rational-basis review.
A ruling that knocks down Texas' law could open up the floodgates for legal challenges to Utah's law. But a ruling upholding the law could mean the Beehive State's law is here to stay.
Past precedent from the Supreme Court
However the Supreme Court rules, there are a couple of previous cases expected to be part of the discussion: Ashcroft v. ACLU and Reno v. ACLU.
The Ashcroft case dealt with a federal law known as the Child Online Protection Act. This 1998 law attempted to restrict children's access to pornography, among other provisions. The law went through multiple courts as it was challenged.
In 2004, the Supreme Court struck down the law in a 5-4 ruling. Justice Anthony Kennedy wrote the majority opinion and said filters would be less restrictive and may be more effective.
"Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information," said Kennedy.
Kennedy said the ruling was not meant to say Congress cannot regulate the internet to prevent kids from accessing harmful materials. It was meant to say the government did not show why it could not use less restrictive ways of achieving its purposes.
The 5-4 opinion drew on a prior case known as Reno v. ACLU. It was a 1997 case regarding two parts of the 1996 Communications Decency Act, which was an earlier law with a similar aim as child protection act. There was a successful legal challenge to a couple of its provisions that dealt with "indecent" material online.
