Boogie Rights
Scotus and the Future of On-Line Porn
The Supreme Court is gearing up to decide whether Texas, and by extension the United States, can force porn websites to ID every user. That’s right: the borderless red-light district of the internet could finally face some checkpoints. Depending on how the Court rules in Free Speech Coalition v. Paxton, the digital porn industry in America could be over.
At the center of the case is a 2023 Texas law that requires porn sites to verify the age of every user using government-issued ID, or some other method, almost all of which will require self-identification in some manner.
Everyone involved agrees that states have a compelling reason to protect kids from sexually explicit content. Even the porn industry agrees on that, or so they say. The real fight is about how far the government can go to do so. And particularly whether the government can protect kids in a way that impedes the right of adults to view the material.
The Court’s technical job is to decide what level of Constitutional scrutiny applies to laws like this. If Texas’s law gets the strict scrutiny treatment, the highest level, the state has to effectively prove there is no other way to protect the kids. If it gets rational basis, the lowest level of scrutiny, it just needs to show the law is a reasonable way to address the issue. The difference could determine whether the law, and perhaps the porn industry, stands or falls.
Texas wants rational basis. The porn industry says this is a classic content-based restriction and deserves strict scrutiny, just like the Court applied in Ashcroft v. ACLU and United States v. Playboy Entertainment Group. Back then, the Court rejected age-verification laws that burdened adults’ rights in the name of protecting kids, pointing instead to parental content filters.
But 2004 was a long time ago. As Justice Amy Coney Barrett pointed out during oral argument, technology has exploded since then with iPhones, gaming consoles, and endless apps. Today’s kids are often more tech-savvy than their parents. Filtering isn’t cutting it anymore, she said. Justice Alito agreed: “Come on, be real,” he told the porn industry’s lawyer. “There’s a huge volume of evidence that filtering doesn’t work.”
Justice Sotomayor, meanwhile, was focused on the legal framework. She reminded everyone that burdening adult access to legal speech means strict scrutiny. “For us to apply anything else,” she said, “would be overturning at least five precedents.”
What’s at stake isn’t just one law. It could be the future of the American porn industry. For years, it’s operated in a legal gray zone online, unregulated, globally hosted, and instantly accessible. But this case could flip the switch. If Texas wins, expect a flood of similar laws, both state and federal. Age verification could become the norm, and the U.S. adult content market could deteriorate fast.
Already, Pornhub has withdrew from Texas. The site literally went dark in the state rather than comply. If more states follow, American-based porn platforms could collapse under the cost and privacy risks of mandatory ID checks. And while users will certainly find workarounds - VPNs, offshore sites, encrypted apps - the days of anonymous universal access could be numbered.
Meyer Lansky, the mob accountant who understood markets better than most politicians, famously said: “People will always pay for sex, booze, and funerals. That’s why we get into those businesses.” The porn industry has long operated on that logic, spending years rebranding itself as mainstream entertainment. But the truth is messier. Organized crime helped build the industry, and its fingerprints remain. Many performers work in murky conditions where the line between consent and coercion blurs. Drugs are common. And the specter of human trafficking still looms large.
If the Court upholds laws like Texas’s, it won’t end porn, it’ll drive it further underground. Hidden. Unregulated. Black market. In trying to sanitize the space, the Court may make it darker, riskier, and harder to monitor. Porn won’t vanish. It will just mutate.
And here’s the kicker: the law and its precedents give the Court room to do almost anything here. Strict scrutiny, rational basis, even intermediate scrutiny, each is plausible, depending on how the Justices frame the issue. Stare decisis? They could follow past rulings, distinguish them, or just overturn them based on the dramatic changes in technology. What’s likely really happening here is that the Court is deciding whether it wants to be the final arbiter of pornography in America. Because no one’s buying smut in seedy bookstores anymore. If the Court greenlights ID requirements for online access, it won’t just tweak the system. It could destroy the current model entirely.