Several members of the Supreme Court’s conservative majority seemed deeply skeptical of a challenge to a Texas law that seeks to limit minors’ access to pornography, peppering a lawyer for the challengers with exceptionally hostile questions.
The lawyer, Derek L. Shaffer, said the law violated the First Amendment by requiring age verification measures like the submission of government-issued IDs that placed an unconstitutional burden on adults seeking to view sexually explicit materials. He said parents could protect their children by using content-filtering software.
Justice Samuel A. Alito Jr. was incredulous. “Do you know a lot of parents who are more tech savvy than their 15-year-old children?” He added that “there’s a huge volume of evidence that filtering doesn’t work.”
Justice Amy Coney Barrett, who has seven children, said “kids can get online porn through gaming systems, tablets, phones, computers.”
She added, “Content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.”
Much of the argument concerned whether the appeals court had erred in using a relaxed form of judicial scrutiny to block the law. Several justices indicated that a more demanding standard applied even as they suggested that the Texas law satisfied it.
That could set the stage for a ruling giving the challengers a short-term victory by returning the case to an appeals court for application of the stricter standard. But there was little doubt that the law would in the end be upheld.
Indeed, several justices expressly asked questions about how the Supreme Court could vacate the decision below without blocking the law while the appeals court took a fresh look at its constitutionality under the correct standard.
State lawmakers said shielding children from graphic, violent and degrading material online justified the law. Those challenging the law included a trade group, companies that produce sexual materials and a performer; they argued that it violated the First Amendment right of adults.
The court’s ruling, expected by early July, will be quite consequential, as 18 states have enacted laws in recent years similar to the one in Texas.
Justice Brett M. Kavanaugh said the Texas law addressed an urgent issue.
“Do you dispute the societal problems that are created both short-term and long-term from the rampant access to pornography for children?” he asked.
Mr. Shaffer said that was “a complicated question.”
The law applies to any commercial website “more than one-third of which is sexual material harmful to minors.” It requires such sites to use one of several methods to verify that users are 18 or older, and it does not allow companies to retain the information their users submit. But the challengers said adults would be wary of supplying personal information for fear of identity theft, tracking and extortion.
“There have been hacks of age-verification providers,” said Mr. Shaffer, a lawyer for the challengers.
Justice Alito responded, “There have been hacks of everything.”
Mr. Schaffer said the law was flawed in several ways. It restricts access to sites that are mostly devoted to materials that are not sexual in nature. It exempts search engines and social-media sites, even though they contain vast troves of adult material. And it ignores less restrictive ways to achieve its ends, notably the use by parents of content-filtering software to limit what their children can see.
Judge David Alan Ezra, of the Federal District Court in Austin, blocked the law, saying it would have a chilling effect on speech protected by the First Amendment.
By verifying information through government identification, the law allows the government “to peer into the most intimate and personal aspects of people’s lives,” wrote Judge Ezra, who was appointed by President Ronald Reagan.
“It runs the risk that the state can monitor when an adult views sexually explicit materials and what kind of websites they visit,” he continued. “In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech.”
A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit disagreed. “The age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” Judge Jerry E. Smith, who was appointed by Mr. Reagan, wrote for the majority. He was joined by Judge Jennifer W. Elrod, who was appointed by President George W. Bush.
Judge Patrick E. Higginbotham, another Reagan appointee, dissented, saying that the law chills free speech rights and could limit adults’ access to popular shows and films like “Game of Thrones,” “The Color Purple” and “The Girl With the Dragon Tattoo.”
When the majority declined to put its decision on hold while the challengers sought Supreme Court review, Judge Higginbotham again dissented, saying that the case “begs for resolution by the high court” because the majority opinion “conflicts with Supreme Court precedent.”
Chief Justice John G. Roberts Jr. suggested that the court’s precedents could not have anticipated the growth of the internet. “Technological access to pornography, obviously, has exploded,” he said, adding that “the nature of pornography, I think, has also changed.”
After the Fifth Circuit’s ruling, Pornhub, one of the most visited sites in the world, suspended its operations in Texas.
The owner of Pornhub was among the parties challenging the law. Justice Alito, in a mocking tone, suggested that it was very different from the sort of sexual materials considered by the court decades ago.
“Is it like the old Playboy magazine?” he asked. “You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?”
Justice Alito, who is 74, said some forms of age verification are painless. “When I try to buy wine at a supermarket, they require me to show an ID,” adding that “I’m flattered by it.”
In April, the Supreme Court refused to block the law while the appeal moved forward. The law “has been permitted for more than a year, and the sky has not fallen,” Texas’ lawyers told the justices.
The appeals court’s majority relied on a 1968 Supreme Court decision, Ginsberg v. New York, which allowed limits on the distribution to minors of sexual materials, including what it called “girlie magazines” that fell well short of obscenity, a form of speech unprotected by the First Amendment.
That decision applied a relaxed form of judicial scrutiny. But in Ashcroft v. American Civil Liberties Union in 2004, the justices blocked a federal law, the Child Online Protection Act, which was quite similar to the one from Texas. They applied the most demanding form of judicial review, strict scrutiny, to find that the law impermissibly interfered with adults’ First Amendment rights.
Applying that test, the court ruled that the federal law violated the First Amendment, citing the availability of less restrictive alternatives like content-filtering software that “would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”
Judge Smith, writing for the Fifth Circuit majority, said the earlier decision was the one that mattered. He reasoned that the Ashcroft decision contained “startling omissions” that undercut its precedential force.
The challengers, represented by, among others, the American Civil Liberties Union, told the justices that the Fifth Circuit was not entitled to second-guess the Supreme Court.
“This case presents the rare and noteworthy instance in which a court of appeals has brazenly departed from this court’s precedents because it claims to have a better understanding of the law,” they wrote.
In the new case, Aaron L. Nielson, Texas’ solicitor general, said much had changed since 2004. The intervening years, and the wide availability of mobile phones, had made the idea that parents could rely on content-filtering software unrealistic. And the depravity of much online pornography, he said, is a menace that requires effective government action.
