In 2023, Texas enacted a law requiring strict age verification for certain websites containing what Texas deems at least “one-third … sexual content harmful to minors.” Operators of these websites must verify the age of every user in Texas, typically via government-issued identification. Noncompliant website operators are subject to fines of up to $10,000 per day.

Soon after the law’s passage, a trade association for the adult entertainment industry sued in federal court, arguing that the law violated the First Amendment. A federal judge held that the trade association was likely to win its suit and temporarily blocked the law from taking effect. But on appeal, the Fifth Circuit partially reversed that decision, holding that the age verification requirement did not run afoul of the First Amendment.

Now the Supreme Court has agreed to take the case, and Cato has filed an amicus brief supporting the law’s challengers.

Our brief points out that the Texas law not only attempts a task better left to parents, but also impermissibly burdens adults’ access to constitutionally protected media. As the Supreme Court has explained, the First Amendment does not allow the government to “reduce the adult population of [a state] to reading only what is fit for children.”

Laws that restrict speech based on its content are subject to “strict scrutiny.” This means that the government must have a compelling interest in passing the legislation, and the law must use the least restrictive means to achieve its goal. As we explain in our brief, Texas’s law fails strict scrutiny because of the burden it places on protected speech. Online age verification is very different from in-person age verification, and Texas’s law requires any adult wishing to access erotic content to share personally identifying information with the targeted websites. This creates serious privacy and security concerns for adult Texans, and it also impermissibly chills the speech of website operators.

Two Supreme Court decisions called Ashcroft v. ACLU (2004) and Reno v. ACLU (1997) should control in this case. In those cases, the Court rejected Congress’s attempts to restrict minors’ access to online pornography because those laws impermissibly burdened adults’ free speech right. Texas’s law similarly burdens protected adult speech, and the district court was correct to subject the Texas age verification law to strict scrutiny.

There are less restrictive ways to protect children online, such as content filtering and device-level restrictions. These methods place power in the hands of parents and avoid putting a serious chill on adults’ access to lawful content. The Supreme Court should reverse the Fifth Circuit and hold the age verification provisions unconstitutional.