WASHINGTON – Thanks to the Internet and smartphones, children now have instant access to vast amounts of online pornography that is graphic, violent and degrading, Texas state prosecutors told the Supreme Court on Wednesday.
She demanded the judges to restore the rules of an earlier era when adult theaters and bookstores had an adults-only policy.
Last year, Texas passed an age verification law that requires pornographic websites to confirm that their users are 18 or older.
Lawyers from 23 other Republican-led states joined Texas in support, saying they have taken or plan to take similar actions.
The court's conservative justices signaled they were willing to uphold these new laws.
They noted that age verification rules are now common for online gambling and online purchasing of alcohol or tobacco.
But more importantly, they pointed to the dramatic change in technology and the easy availability of hardcore pornography.
“We are in a completely different world,” said Chief Justice John G. Roberts Jr. He said this warrants a review of past rulings that invoked the First Amendment to strike down anti-pornography measures.
In one such ruling in 2004, the court said parents and librarians could use filtering software to protect children from pornography.
Judge Amy Coney Barrett said parents have long known that “online filtering doesn't work” and “children can access online porn on cell phones and tablets.”
She said the court has historically had no problem upholding laws that prohibit bookstores from selling sexually explicit books or magazines to children or teenagers.
“Why is this different?” she asked.
Washington attorney Derek Shaffer, who represented the adult entertainment industry that challenged the Texas law on the First Amendment grounds, argued that the Texas law could have a “chilling effect” on adult customers who may be wary of providing personal information , which are required to verify age and identity.
Texas Attorney General Aaron Nielsen said the new age verification systems allow customers to confirm their age online without having to contact a specific website directly.
“Age verification is simple, secure and common,” he said.
The judges and lawyers spent most of their time considering what standard of free speech should apply to such a law.
In the past, the court has said anti-pornography laws need to be “strictly scrutinized.” This typically resulted in such laws being restricted or abolished.
In contrast, the 5th Circuit 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 could also agree to send it back to the 5th Circuit for a second hearing.
Republican-led states highlighted a growing pornography problem.
“The average child is exposed to internet pornography as early as elementary school.” wrote prosecutors for Ohio and Indiana. “Pornography websites receive more traffic in the US than the social media platforms Instagram, TikTok, Netflix and Pinterest combined.”