Takeaways from the Supreme Court arguments on Texas’ age-verification law for porn sites

(CNN) — A majority of the Supreme Court signaled Wednesday that Texas may be permitted to require some form of age verification for pornographic sites, but left open the possibility that deeper First Amendment questions may not be resolved immediately.

After two hours of oral argument, the court’s conservatives appeared in sync on the idea that states should be able to impose some kind of requirement to ensure that minors can’t easily access obscene material online, while several justices flagged concerns about their ruling spilling over and affecting other First Amendment rights.

Texas’ law is similar to more than a dozen others across the country that require users to submit some form of proof of adulthood. But the porn industry challenged the law, asserting that it chills the ability of adults to access protected content.

While the court seemed skeptical of that argument, it also seemed likely to offload some of the thornier First Amendment questions to a lower court. Both the 5th US Circuit Court of Appeals – and the Supreme Court itself, on an emergency basis – allowed the law to take effect last year.

A decision is expected by this summer.

Here are key takeaways from Wednesday’s arguments:

Skepticism toward content filtering software as a fix

Several of the court’s conservatives appeared to throw cold water on the adult entertainment industry’s proposed solution to the issue of minors accessing pornography online: content filtering software.

Such a fix, an attorney representing the industry argued to the court, would curb minors’ access to explicit material without burdening an adult’s access to the same material.

But at least three justices suggested that approach was insufficient, including Justice Amy Coney Barrett, who drew from personal experience when she told the lawyer that the software was far from being foolproof. Barrett has seven children.

“Kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with,” she said.

“And I think that the explosion of addiction to online porn has shown that content filtering isn’t working,” Barrett added.

Justices Brett Kavanaugh and Samuel Alito also expressed doubts about content filtering being a workable solution.

“Do you know a lot of parents who are more tech savvy than their 15-year-old children?” Alito asked the lawyer representing the adult entertainment industry at one point. “C’mon. Be real.”

The skepticism is important because part of the legal calculation the court may need to address is whether the Texas law was an appropriate response to the state’s interest in protecting minors from the material.

In a related case from 2004, the high court said content filtering software “might be” an “effective” tool for addressing the issue when it ruled against the Child Online Protection Act, a federal law that attempted to criminalize content on the “World Wide Web” that was harmful to minors.

Roberts and Alito: Not your grandfather’s Playboy

Chief Justice John Roberts, in a compelling series of questions, repeatedly questioned the usefulness of decades-old precedents given that the nature of technology and porn has changed. The issues at stake, he seemed to say, weren’t like the “girlie magazines” the court was wrestling with when it applied broad First Amendment protections in the 1960s.

It’s a theme several of the conservative justices raised, comparing explicit videos on the internet with more benign images once published by Playboy.

Are those changes, Roberts asked, the kind of thing that should require the court to revisit how it thinks about applying the First Amendment in such cases?

“The technological access to pornography, obviously, has exploded,” Roberts said. “It was very difficult for 15-year-olds … to get access to the type of thing that is available with the push of a button today.”

Is it something “we should at least consider,” Roberts asked, “as opposed to keeping a structure that was accepted and established in an entirely different era?”

That approach, if the court embraced it, would suggest a win for Texas.

Derek Shaffer, representing the adult entertainment industry in the case, quickly responded to Roberts: “I respectfully urge you not to, Mr. Chief Justice.”

Alito invoked the old joke about people reading Playboy for the articles, by asking the lawyer for the adult industry whether Pornhub, a major porn site, offered essays for visitors.

“What percentage of the material on that is not obscene?” Alito asked. “Is it like the old Playboy – you have essays on there by …. Gore Vidal and William F. Buckley Jr.?”

How SCOTUS could resolve the case

Though the justices appeared to generally support the Texas law, how the court resolves the case could be a convoluted path.

The Supreme Court was asked specifically what level of “scrutiny” must be applied to the law. That’s a legal term of art that, normally, decides a First Amendment case. If the highest level of scrutiny – known as “strict scrutiny” – applies, it makes it nearly impossible for a law restricting protected speech to stand. The lowest level of scrutiny, in this case “rational basis,” almost always works out in the government’s favor.

It wasn’t entirely clear, based on the arguments, whether the Supreme Court would make that decision. Some justices suggested they might be open to letting a lower court sort that out or to seeking some middle ground. Others seemed to suggest that Texas’ law might be the rare prohibition on speech that could survive strict scrutiny.

“Is the statement of … First Amendment principle that you’re seeking at a broad level: ‘Age verification requirements are permissible, so long as they’re not overly burdensome on adult access?’” Kavanaugh asked at one point of Texas Solicitor General Aaron Nielson.

Nielson agreed.

“Whatever you call it,” Kavanaugh said,” it can’t get too burdensome.”

That promoted Justice Ketanji Brown Jackson, a liberal, to jump in.

“I think what you call it is important,” Jackson said.

Sympathy from Sotomayor

The adult entertainment industry appeared to have at least one ally on the high court: liberal Justice Sonia Sotomayor, who was quick early on to offer a lifeline to Shaffer, the lawyer representing the law’s challengers, after he faced a series of tough questions from the rest of the bench.

Sotomayor noted the court has repeatedly applied the highest level of legal scrutiny when deciding similar cases. If the court did so in this case, it would almost certainly lead to the Texas age-verification law being invalidated.

Both sides agreed children should not have access to obscene material. The question is over how courts analyze the First Amendment issues when a law that keeps porn from children also may keep it from adults who are entitled to see it. Sotomayor noted that, in the past, the court has looked to the adults whose First Amendment rights would be impacted and applied the highest degree of legal scrutiny.

“We have at least five precedents that have answered that question directly,” the justice stressed. “For us to apply anything else would be overturning at least five precedents.”

CNN’s Tierney Sneed contributed to this report.

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