It’s unclear who will lead oral arguments before the Supreme Court on Thursday about the Texas law requiring pornography websites. technology to block minors from accessing their pages.

Under the law, HB 1181, which was passed in 2023, if at least one third of the content of a website is “sexual material harmful to minors” the owner must restrict the access it using age verification technology. What form age verification takes remains open to interpretation.

The court’s conservative justices seem friendly to the argument that stronger tools are needed to prevent minors from viewing pornography because of the ease with which it is accessible to those mobile phones and other devices. But, along with the court’s three liberal justices, they questioned the solicitor general of Texas, Aaron Nielsen, whether the state law should be subject to, and could survive, the court’s strict scrutiny standard of review. has previously set out for analysis laws that may restrict protected forms of speech.

The pornography industry, represented by the Free Speech Coalition trade association, challenged the law and won a preliminary injunction from a federal district court. But the 5th Circuit Court of Appeals overturned that decision, based on a standard known as rational basis review, which requires a party challenging a law to prove that the government has no legitimate interest in making the rule or that there is no reasonable connection between the law and the legitimate interest of the government.

Before the Supreme Court on Thursday, Derek Shaffer, the attorney representing the Free Speech Coalition, argued that the appeals court erred and instead should subject the law to a stricter standard of review, which would put the burden- anon in Texas to prove that HB 1181 is not only in search of a compelling interest of the state but it is also narrowly tailored and not overly burdensome for adults.

While states have a compelling interest in restricting minors’ access to pornography, Texas’ age verification requirement fails the strict scrutiny test, Shaffer argued, because those age verification requirement creates a great burden for adults by requiring them to make a permanent. , a digital record of their visits to pornographic sites, which can be hacked or made public. In addition, he argued, Texas failed to consider other technological solutions, such as content filtering devices for the use of minors, that would not have burdened adult audiences. well

Nielsen, who represents Texas, said pornography websites can use biometric identifiers such as handprints or facial recognition without raising privacy concerns or being overly burdensome. and adults. “Age verification is now simple, secure, and common, including anonymity,” he said.

In their inquiry, the justices did not examine the efficacy or privacy implications of various age verification technologies. Their review primarily focused on how to interpret decades-old court precedent on when to apply strict scrutiny given the significant changes the internet has undergone since the most recent cases decided.

“For us to apply anything less (than strict scrutiny) is to ignore at least five precedents,” Justice Elena Kagan said at one point.