In a 6-3 decision authored by Justice Clarence Thomas, the U.S. Supreme Court ruled last week that a Texas law requiring pornographic websites to implement age-verification laws to protect minors is constitutional.

The ruling, which states that the law need only be reviewed under “intermediate scrutiny,” and that the free speech burden is only incidental to the law, is a win for protecting kids from pornography. 

The  Ethics and Religious Liberties Commission (ERLC) filed an amicus brief in conjunction with both the Southern Baptists of Texas Convention (SBTC) and the Baptist General Convention of Texas (BGCT) supporting the law in November, highlighting: 

• Southern Baptists’ opposition to pornography in any form;
• A desire to protect children from exposure to it; and
• The belief that the state has a responsibility to protect children from such material. 

What is the case — Free Speech Coalition v. Paxton — about?

The background: In June 2023, the Texas state legislature passed House Bill 1181 (H.B. 1181), which requires any websites that distribute “sexual material harmful to minors” to verify users are 18 or older to allow them access to the website. The standards would apply to any website that “knowingly and intentionally” publishes or distributes harmful sexual material, provided the website’s content consists of at least one-third such material. 

The issue: Under the law, websites are required to implement age verification technology by which companies can verify the age of their users through a number of different means, including a driver’s license, other official government identification or biometric data.  

The legal challenge: Free Speech Coalition, an association of porn industry activists, questioned the constitutionality of age-verification laws, arguing that such policies violate free speech protections and, as a result, asked the court to review such laws under “strict scrutiny.” 

Strict scrutiny is the same standard by which the federal government enforces federal laws related to religious liberty and is the highest legal standard that must be met by the government. To overcome strict scrutiny, it must be demonstrated that the government has sought the least restrictive means possible to accomplish a compelling government interest. The lower courts ruled Texas’ law only needed to be reviewed under “rational basis scrutiny.”

The argument: Texas and the Ethics and Religious Liberties Commission (ERLC) both argued that the Supreme Court has previously recognized that the government has not only a compelling interest but also a duty to protect children from the dangers of pornography. As the ERLC and both Texas conventions explained, “The amici believe it is an abundantly good law. But more importantly for the purposes of this case, it is also abundantly constitutional.”

What did the Supreme Court’s decision say on protecting children from pornography?

Justice Thomas’ majority opinion explained that the petitioners, who believe the age restrictions to be unconstitutional, “contend that the law must survive strict scrutiny because it imposes a content-based regulation on protected speech. The State, on the other hand, argues that the statute is subject only to rational-basis review because it does not burden any protected speech.” 

Thomas continued: “We think neither party has it right. Applying our precedents, we hold that intermediate scrutiny applies.”

Intermediate scrutiny requires Texas’ law to serve only an important government interest and that the imposed restrictions be substantially related to achieving that interest. Under this intermediate level review, the majority found that “H. B. 1181 survives intermediate scrutiny because it ‘advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.’”

Thomas writes that “History, tradition, and precedent establish that sexual content that is obscene to minors but not to adults is protected in part and unprotected in part.” Because of this distinction, “States can impose greater limits on children’s access to sexually explicit speech than they can on adults’ access.”

Under Supreme Court precedent, adults have the right to access content deemed obscene for minors. However, the justices find that, while submitting to age verification may be a burden, “adults have no First Amendment right to avoid age verification.” Thomas explains that, under this law, “Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment.”

Thomas points to the common-sense restrictions at brick-and-mortar establishments that require age verification to access regulated products like alcohol, firearms and sexually explicit content. Texas’ law applies these common standards to the digital age, considering that “Most States require age verification for in-person purchases of sexual material, and petitioners concede that in-person requirements of this kind are ‘traditional’ and ‘almost surely’ constitutional.” From that logic, the Court concludes that requiring age verification online in an effort to protect children from such material is also constitutional.

The Supreme Court has not ruled substantively on internet-based speech since the dawn of the internet age. Justice Thomas highlights that, “With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content — both benign and obscene — at almost any time and place, with an ease that would have been unimaginable” even just a few decades ago. This case changes the landscape of pornography legislation as we know it, squarely establishing a precedent of enforcement against explicit content to protect children in the digital age.

Dissent: Justice Elena Kagan dissented, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, arguing that “[t]he State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary.” Justice Kagan retorts that H.B. 1181 draws content-based lines and should be subject to strict scrutiny, based on precedent of prior First Amendment review.

Why is this protecting kids from pornography case important to Southern Baptists?

Southern Baptists are vehemently opposed to pornography, recognizing it as an affront to God’s design for gender and sexuality. Furthermore, Southern Baptists have time and again passed resolutions that argue the government has proper authority to protect children from accessing pornography and other explicit content online. Since 1959, messengers have reaffirmed that pornographic material is an affront to human dignity, due to its unbiblical and exploitative nature.

In 2015, a resolution “On Pornography and Sexual Purity” called on government authorities “to enact and enforce laws that restrict all forms of pornography, particularly those that include and exploit minors.” At this year’s Southern Baptist Convention (SBC) annual meeting in Dallas, Brent Leatherwood authored a resolution “On Banning Pornography” that specifically calls on federal and state legislators to take further legal actions toward banning pornography, including the implementation of rigorous enforcement mechanisms like age verification.

The ERLC has supported age-verification technology legislation at the federal level, including Sen. Mike Lee’s SCREEN Act. With this ruling, states and federal legislatures are now tasked with creating statutory safeguards that create a healthier online environment — an environment that prioritizes the family and respects human dignity.