What to Expect in Free Speech Coalition v. Paxton

The case before the Supreme Court over the constitutionality of Texas's age-verification law for pornography websites (H.B. 1181)

Tomorrow the Supreme Court will hear oral arguments in a pivotal case, Free Speech Coalition v. Paxton, over the constitutionality of a Texas law, H.B. 1181, that requires age verification for pornography websites in order to protect minors from obscenity online.

If you are just getting up to speed in advance of tomorrow’s arguments, let me give you a quick high-level summary of the issues.

The Texas law at issue:

• H.B. 1181 requires pornographic websites doing business in Texas to “use reasonable age verification methods” to verify that a customer “is 18 years of age or older.” The law applies to commercial entities that “knowingly and intentionally publish or distribute material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors.”

• The law defines “sexual material harmful to minors” based on the Supreme Court’s test for obscenity (Miller v. California, 1973), but expanded with language “with respect to minors.”

• To comply a covered website must require customers to “1) provide digital identification or 2) comply with a commercial age verification system that verifies age using a government-issued identification or commercially reasonable method that relies on public or private transactional data to verify the age of an individual.”

The case’s journey to the Supreme Court:

• H.B. 1181 was to go into effect on September 1, 2023. Petitioners, The Free Speech Coalition (the trade industry association for pornography websites) moved for a preliminary injunction. The district court applied strict scrutiny and issued a preliminary injunction facially enjoining the law’s enforcement.

• The Fifth Circuit administratively stayed the injunction and expedited oral argument. They then stayed the injunction pending resolution of the appeal. In March 2024, the Fifth Circuit vacated the injunction, relying on Ginsberg v. New York (1968), it concluded that “regulations of the distribution to minors of materials obscene for minors are subject only to rational-basis review.” The court distinguished the Texas law from two prior relevant precedents, Reno v. ACLU (1997) because the law at issue in Reno was much broader than Texas’s, and Ashcroft v. ACLU (2004), because Ashcroft did not consider which level of scrutiny applied.

• Petitioners filed a writ of certiorari to the Supreme Court in April 2024 and the Court granted cert in July 2024. Oral arguments will be heard tomorrow.

• Because the Fifth Circuit stayed the district court’s injunction, Texas’s law has been in effect since September 19, 2023.

The key legal issues in the case:

• Standard of review: The first key legal issue in the case is whether the Fifth Circuit applied the right standard of review for the law. The Fifth Circuit, relying on Ginsberg v. New York (1968) ruled that the law should be evaluated under rational-basis review because the Texas law is seeking to regulate a category of speech, obscenity, that is not protected by the First Amendment. The Petitioners on the other hand argue that the law should be evaluated under strict scrutiny, the highest bar for a law to pass, because rational basis applies to restrictions on obscenity for minors, not the impositions of content-based burdens on adults’ access to constitutionally protected sexual speech, as Court precedents (Reno, Playboy, and Sable) since then have held.

• Is the Texas law facially unconstitutional: Does the Texas law survive on its merits under strict scrutiny (Petitioners say no; Respondents say yes, and argue that while rational basis should apply, H.B. 1181 also survives any level of review, including strict scrutiny).

What The Free Speech Coalition (Petitioners) are arguing:

• Petitioners argue in their brief that the Texas law should be reviewed under strict scrutiny because the Court in Ashcroft did not adopt the rational-basis review of Ginsberg but applied strict scrutiny. They argue rational-basis standard applies only to definitions of obscenity for minors, not laws that place impositions on adult speech, as Texas’s law does, and so the strict scrutiny of Ashcroft should apply to reviewing H.B. 1181.

• They argue that the law has three key flaws:

  • 1. The law is overinclusive: because the law’s requirements apply to entire websites when they have more than one-third of content that qualifies as “sexual material harmful to minors,” which captures then a lot of content that is not obscene for adults or not even sexual (they fail though to give any examples of actual websites in this type of scenario).

  • 2. The law is underinclusive because it explicitly exempts search engines and de facto exempts social media platforms (because social media platforms don’t meet the one-third threshold), which contain large amounts of sexual material obscene as to minors.

  • 3. It is not the least restrictive means. They argue that content filtering technology has improved since Ashcroft, while age verification has grown easier to circumvent via Virtual Private Networks (VPNs) and that the threats of identity theft are greater today. (Our amicus brief and another brief by the Manhattan Institute offer a lot of evidence to the contrary — that it has been the exact opposite — filters are easy for children to circumvent and ineffective in the app-based ecosystem, whereas age verification is much more effective and more anonymous and protective for adults today).

• And so they conclude by arguing that the Texas law is a speaker-based discrimination, designed to target disfavored speakers (pornography websites) rather than protect kids.

What Paxton (Respondent) is arguing:

• Texas in its Respondent brief argues that H.B. 1181 should be reviewed under rational basis, because “it imposes a gatekeeping function that forecloses only minors from accessing obscenity.” Texas argues the law “is not ‘content-based’ because the question it asks is whether the content is constitutionally protected in the first place. Such threshold determinations have never been subjected to strict-scrutiny review.” Rather, states may prevent the “sale to minors of sexual material that would be obscene from the perspective of a child…” (Ginsberg) and where “the level of constitutional protection depends on the identity of the listener, a State can require the speaker to serve as a gatekeeper.” (Sable)

• Texas is emphatic that H.B. 1181 does not prevent adults from viewing pornography, it requires online pornographer to take commercially reasonable steps to ensure that their customers are not children.

• This case, Texas says, “is about means, not ends.” And “the means Texas has chosen is appropriate. Texas has addressed only websites dedicated to pornography, has allowed them to comply by using common age-verification technology, and has not imposed criminal penalties.”

• Petitioners must show that a substantial number of the law’s applications are unconstitutional to succeed and they “cannot because much of the content on their websites is obscene even for adults.”

• The exemptions of search engines and social media were driven by a reasonable policy choice. Texas's law “focuses on websites causing the most harm to children.”

• “As more than two decades of failed filtering confirms, Texas cannot vindicate its interest in any other way.” Texas explain that Petitioners cannot show filtering is “at least as effective” as age verification. “To the contrary, despite widespread availability, filtering ‘has proven an ineffective mechanism.’”

Other key issues to pay attention to:

• Beyond the interesting legal arguments around what standard of legal review applies, the Court will have to grapple with questions related to the technology available today. Questions on how effective filtering technology is, how smartphones and social media have changed the landscape of internet pornography in terms of accessibility and accidental exposure, and questions of how age verification technology can verify users’ age in ways that are anonymous and convenient, so as not to burden adult speech. How the Court digs in to questions related to the technology of today will be interesting to see.

What will the Court do?

• We shall see. Twenty years ago when Ashcroft was decided, it was a narrow 5–4 decision, and as mentioned there have been significant changes in technology since then. In my, and others’, assessment, these changes in technology merit a change in the Court’s calculus to uphold age verification for pornography websites as constitutional.

• However, given the challenges over the correct standard of review, a likely result is that the Court will not rule on the full merits of the law at this time, but send it back down to the lower courts with instructions to apply a different standard of review, intermediate or strict scrutiny, and then the law would have to make its way back up for a final decision by the Court. If that is the case, we will have to see how the Court writes its opinion in remanding it, if they signal one way or the other on their assessment of the final constitutionality of the law, even under a stricter level of legal scrutiny.

Why is this case important?

• As Texas explains in their brief, through smartphones and other devices, today “children have instantaneous access to unlimited amounts of hardcore pornography…Childhood access to this avalanche of misogynistic and often violent smut ‘is creating a public health crisis.’”

• And as stated in our amicus brief (Brad Littlejohn and I are amici curiae in this case), the status quo since Ashcroft, “which relies on parents to select, install, update, and monitor content filters—has not been enough to protect children in our society from internet porn and its harms…The status quo has not been enough to advance the government’s interest in protecting children from porn. Age-verification laws add an important layer of protection over and beyond what content filters can offer. Parents need this help.” (We expound further on this point of why parents need help from the government to protect kids from pornography in a piece out last week in First Things.)

In conclusion, whether at this time or in the future (if Texas’s law needs to be sent back down to be reviewed under a different legal standard by the lower courts first), the Supreme Court should ultimately find that age-verification laws are constitutional. States have a right to protect children from obscenity online and age-verification laws are a necessary and constitutional means to do so.