A Utah law hangs in the balance after the US Supreme Court hearings this week in the case of Free Speech Coalition v. Paxton.
While the Supreme Court case involves a challenge to the state of Texas’ HB 1181 – a law requiring age verification before accessing online sexual content, the ruling will impact a similar Utah case dismissed in October by the United States Court of Appeals 10th Circuit.
Utah is one of nineteen states, including Texas, that have passed laws requiring an age verification process that includes data collection and verification to access online pornographic content. Should the Texas law be overturned, it could invalidate all 19 statutes nationwide including the Utah statute.
Oral arguments on Tuesday January 14th seemed to indicate that the court was open to allowing some age requirement while also expressing concerns about broader First Amendment rights.
Justice Sonia Sotomayor raised questions regarding the level of scrutiny the case should warrant – a legal term concerning the way laws impact Constitutionally protected rights. Observers say the decision may be determined based on the level of judicial scrutiny applied, not the specifics of the argument or case.
“Pornography is historically the canary in the coal mine when it comes to censorship.” said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “If this case were about age verification for access to Shakespeare, for example, there’d be no question that it violates people’s First Amendment rights. This really is about how the government can regulate any speech that it doesn’t like.”
Opponents of the law have focused on the compelling interests of the government to protect children from harm.
“The porn industry’s attorney seemed to envision a world where hardcore websites are somehow beyond the government’s compelling interest to protect children from harm,” said Brent Leatherwood, President of the Ethics and Religious Liberty Commission. “A majority of justices were having none of it.
Utah Senator Mike Lee along with the Church of Jesus Christ of Latter-day Saints, United States Conference of Catholic Bishops, and American Islamic Congress all filed briefs in support of the Texas law.
“Given the myriad devices children can (and do) use to access the internet without supervision, these reforms represent the best hope for shielding children from pornography online,” said one brief.
Some national conservative leaders were caught on camera saying the age-verification laws were intended to be a first step toward outlawing pornography all together. In states where the laws have passed major pornography distributors have already blocked access to their sites.
PornHub shut off access inside the state of Utah six weeks after Gov. Spencer Cox signed SB 287 into law, requiring data collection for age-verification.
“I fully support PornHub’s decision to remove their content in Utah,” Gov. Cox said at the time. “The vast majority of Utahns would agree that companies should be held responsible for knowingly distributing pornography to minors.”
While direct access may be blocked, Gizmodo and other tech sites almost immediately pointed out the tech loopholes making it easy to access blocked content.
A decision in the case is not expected until this summer.