DISCUSSION OF CASE
by Amy Howe
on 13 January 2025
at 15:00
The judges will hear arguments Free Speech Coalition v. Paxton on Wednesday. (Katie Barlow)
An adult entertainment industry trade group will appear at the Supreme Court on Wednesday in its challenge to a Texas law that requires pornographic sites to verify the age of their users before granting access — for example, by requiring a government-issued identification. The law applies to any site whose content is a third or more “harmful to minors” — a definition that challengers say would include most sexually oriented content, from nude models to romance novels and R-rated movies.
The state counters that the law is necessary because the proliferation of smartphones has created an explosion in young people’s access to “unlimited amounts of hardcore pornography”, which in turn has created a public health crisis.
The Texas legislature passed the law, known as HB 1181, in June 2023. Before the law could take effect, an adult industry trade association went to federal court, arguing that the age verification requirement violates the First Amendment because it burdens adults’ access to speech protected by the constitution.
A federal district court in Austin, Tex., issued an order temporarily barring the state from enforcing the age verification requirement. Senior U.S. District Judge David Alan Ezra wrote that because the law would require adults to submit personal data to access the sites, it discouraged access by raising concerns about identity theft and extortion. As a practical matter, Ezra concluded that HB 1181 is identical to a federal law, the Child Online Protection Act, which the Supreme Court found likely unconstitutional in its 2004 decision in Ashcroft v. ACLU.
The US Court of Appeals for the 5th Circuit overturned Ezra’s ruling. It acknowledged that the Texas law was “very similar” to the Child Online Protection Act. But it declined to apply strict scrutiny—the strictest standard of review, which requires the government to show that the law both serves a compelling government interest and is narrowly drawn to furthering that interest—on the grounds that in Ashcroft the federal government, in defense of the law, had not disputed that strict scrutiny applied.
Instead, the 5th Circuit applied a less stringent standard of review, known as rational basis review, which looks at whether the statute advances a legitimate state interest and whether there is a rational connection between that interest and the law.
The Court of Appeal relied on the Supreme Court’s decision from 1968 i Ginsberg v. New York believes that states can restrict young people’s access to sexual material that is harmful to them. In that case, the court applied a rational review of a state law that made it a crime to sell pornographic magazines to young people.
Applying a rational review of HB 1181, the 5th Circuit concluded that Texas’ age verification requirement is rationally related to the government’s interest in preventing young people’s access to pornography.
The Supreme Court last spring denied a request to reinstate Ezra’s order and block Texas from temporarily enforcing the law, but it agreed in July to take up the dispute and review the 5th Circuit’s ruling.
As the case reaches the Supreme Court, it focuses on which standard of review—rational basis or strict scrutiny—the appeals court should have used to determine whether the law violates the First Amendment.
The Free Speech Coalition, a trade association for the adult entertainment industry, insists that HB 1181 should be subject to strict scrutiny. Although the court in Ginsburg believed that states could restrict young people’s access to sexual content that could harm them, the Free Speech Coalition has since acknowledged — culminating in its decision in Ashcroft – the court has applied strict scrutiny to laws that, while seeking to protect young people, make it more difficult for adults to access material they have a right to see.
Any failure by the federal government i Ashcroft to argue that the rational basis review applied was not an “oversight,” the Free Speech Coalition argues, but instead a “recognition” that the Supreme Court had “clearly and repeatedly held that strict scrutiny applies to laws like COPA.”
Nothing in Ginsburg justifies using rational basis review here, concludes the industry association. In that case, the law only prohibited “knowing” sales to young people and placed no restrictions on adults’ access to sexual content. “In fact,” the group emphasizes, “no court in the 20 years since Ashcroft or the 56 years ago Ginsburg has even suggested something similar to the position the Fifth Circuit took here.”
When strict controls are used, the expert group continues, it is a “straightforward” case. The group agrees that Texas has a compelling interest in protecting young people and that—just as the court indicated in Ashcroft – “a law narrowly tailored to this end can survive strict scrutiny.”
But the Texas law is “thrice flawed,” the group maintains. On the one hand, it sweeps in too much speech because the age verification requirement applies whenever an adult wants to access any speech on a website where sexual material harmful to young people makes up at least a third of the website’s content. “For example,” the group writes, “a website that contains 65% core political speech and 35% sexually oriented content would be 100% subject to HB 1181’s restrictions.”
On the other hand, the group says, the law is under-inclusive because it does not apply to other ways in which young people can access the same kind of content that the law seeks to restrict, such as social media such as Facebook and Instagram and search engines.
Third, the group continues, there are other, less restrictive ways to achieve Texas’ goal of protecting young people. IN Ashcroftnotes the group, the Supreme Court “specifically identified” content filtering software as a better way to limit young people’s access to inappropriate material “without burdening adults’ access to speech they are entitled to receive.”
The state’s failure to rely on content-filtering software is particularly striking, the group adds, because the technology has improved in the two decades since the court’s ruling in Ashcroft. In contrast, it notes that young people have become better at using technology to circumvent age verification requirements, while the potential problems associated with requiring online age verification (such as data breaches, identity theft and extortion) have worsened.
Any one of these flaws would be enough, standing alone, to render the law unconstitutional, the Free Speech Coalition argues. But when all three are considered together, the group writes, “they underscore that HB 1181 is primarily designed to target bad speakers — whom the law labels with self-deprecating ‘health warnings’ — rather than to fulfill the state’s purported goals.”
The Free Speech Coalition warns that upholding the 5th Circuit’s decision could lead to “even more troubling restrictions on speech” — from efforts to restrict sexual content more broadly as part of an effort to protect young people to use rational review to other restrictions that seek to shield youth from “allegedly harmful speech” that does not involve sexual content.
The Biden administration joined the case as a “friend of the court” and will share argument time on Wednesday. The government agrees with the Free Speech Coalition that the appellate court should have subjected HB 1181 to strict scrutiny. But the Supreme Court should send the case back to the 5th circuit to take a closer look, writes US Solicitor General Elizabeth Prelogar. And when it does, Prelogar adds, the justices should “make clear that the First Amendment does not prohibit Congress and the states from enacting appropriately tailored measures to prevent children from accessing harmful sexual material on the Internet.”
The state emphasizes that HB 1181 does not prevent adults from accessing pornography, nor does it require them to identify themselves. Instead, writes Texas Solicitor General Aaron Nielson, the law simply requires websites that host pornography “to take commercially reasonable steps to ensure that their customers are not children” — a requirement, the state says, that is consistent with restrictions, that are imposed elsewhere in the world. (such as the UK, Australia, France and Germany) and by other industries such as online sports betting.
The state emphasizes that the Free Speech Coalition “does not dispute” that if its members sold sexually oriented content from “brick-and-mortar bookstores or sidewalk magazines, Texas could combat that harm by requiring them to ensure that their customers are not children.”
IN Ginsburgsays the state, the Supreme Court made clear that laws restricting young people’s access to materials harmful to them are subject to rational review. The same test should apply to the state’s requirement that websites hosting pornography verify that their customers are indeed adults, it insists.
If Ashcroft prevents Texas from requiring websites hosting pornography to use age-verification technology, even when the state can impose a similar requirement on brick-and-mortar merchants, the state continues, then it should be overruled. “Reliable age verification wasn’t on the table twenty years ago,” the state acknowledges, but “that’s not at all true today.” Moreover, Texas added, the world has changed more broadly in the two decades since the court’s decision in Ashcroftwhere “online obscenity” becomes “much more dangerous to children as the volume, production quality and algorithm use increase.”
Even if Ginsburg does not apply to online pornography, the state writes, HB 1181 can still survive even strict scrutiny because it is the least restrictive way to achieve Texas’ interest in protecting children from pornography. Texas “has only targeted websites dedicated to pornography, has allowed them to comply by using common age verification technology, and has not imposed criminal penalties,” it claims. The Free Speech Coalition also can’t show that content filtering would be as effective as an age verification requirement—because, while it’s been tried, it’s too easy to circumvent and so hasn’t worked.
Furthermore, at this stage of the challenge, the state says when the Free Speech Coalition argues that the state should not be allowed to enforce the law against anyone—the so-called facial challenge—the group must show that the number of unconstitutional uses of the law substantially outweigh the scenarios in which it is constitutional. But it can’t, the state argues, “because much of the content on” the sites covered by the law “is obscene even to adults.”
Finally, to obtain an order temporarily blocking the law, the state says the Free Speech Coalition must show not only that the law is likely to be unconstitutional (which it has not done), but also that its members are likely to be permanently harmed if the law is allowed to come into force and that it serves the public interest to suspend the law. But the state claims the group has not identified anyone who has been deterred from visiting members’ websites as a result of the age verification requirement.
And although HB 1181 has been in effect since September 2023, the state adds, “the sky has not fallen.” Accordingly, Texas concludes that the Supreme Court “should preserve the status quo while litigation continues.”
This article was originally published on Howe on the Court.