ARGUMENT ANALYSIS
By Amy Howe
on 15 January 2025
at 15.05
Texas Attorney General Ken Paxton speaks to reporters outside court Wednesday. (Mark Walsh)
The Supreme Court was split on Wednesday over a challenge to a Texas law that requires pornographic websites to verify the age of their users before granting access. Last year, a federal appeals court in New Orleans allowed the state to enforce the law, saying it was rationally related to the government’s interest in preventing young people from viewing porn.
After more than two hours of debate on Wednesday, it was not clear whether a majority of the justices were ready to uphold the lower court’s decision. Some justices appeared to agree with the challengers, led by a trade group for the adult entertainment industry, that a federal appeals court in New Orleans should have applied a stricter test to determine whether the law violates the First Amendment. But even that ruling may prove to be only a limited victory for the challengers in the short term.
The law at the center of the case is known as HB 1181. A federal judge in Austin, Tex., issued an order shortly before HB 1181 was set to take effect in 2023, temporarily barring the state from enforcing it. Senior US District Judge David Alan Ezra concluded that the law is likely unconstitutional.
But the 5th Circuit overturned Ezra’s order, clearing the way for the state to implement the age verification requirement. The appeals court applied a less stringent standard of review, known as rational review, than Ezra had used. This test looks at whether the law promotes a legitimate state interest and, if so, whether there is a rational connection between this interest and the law. In contrast, the stricter standard of review, known as strict scrutiny, requires the government to show that the law serves a compelling government interest and is narrowly drawn to furthering that interest.
Representing the challengers, Derek Shaffer told the justices that the 5th Circuit’s decision to apply rational review was a “deviant position” that defies the Supreme Court’s “consistent precedents,” including the Supreme Court’s 2004 decision in Ashcroft v. ACLUwhere the justices applied strict scrutiny and concluded that a federal law—the Child Online Protection Act—similar to HB 1181 was likely unconstitutional.
Brian Fletcher, the principal deputy attorney general who argued on behalf of the Biden administration, agreed with Shaffer that the appeals court erred in applying the less stringent standard of review. But that shouldn’t stop Congress or states from preventing the distribution of child pornography online, Fletcher stressed.
In defending the law, Texas attorney Aaron Nielson emphasized that the challengers do not dispute that the websites targeted by HB 1181 harm children. When the Supreme Court faced a similar situation more than 50 years ago, i Ginsberg v. New Yorkhe noted that it applied a rational review of a law that made it a crime for brick-and-mortar stores to sell pornographic magazines to young people.
If strict scrutiny were applied to HB 1181, Nielson told the justices, Texas would have to meet the same high standard to prevent children from entering strip clubs — something Supreme Court cases do not require, he said. And Texas has long tried to use content-filtering software, which challengers cite as an alternative to HB 1181’s age verification requirement, to prevent children from accessing pornography, but the problem “has only gotten worse.”
Chief Justice John Roberts and Justice Clarence Thomas seemed to suggest that even if the Supreme Court had previously applied strict scrutiny to laws governing adults’ access to sexually explicit content, advances in technology might justify taking another look at the standard of review. Access to pornography, Roberts observed, has “exploded”: not only is it much easier for teenagers to access porn, but the kind of porn they have access to has also changed and become much more graphic.
Thomas noted that when the court made its decision in Ashcroftit was in a “world of dial-up internet” access. “You’d admit we’re in a completely different world” now, he said.
Shaffer resisted the idea that changes in technology justified a change in the standard of review. While acknowledging that the government has a compelling interest in preventing young people from accessing porn – the first part of the strict scrutiny test – he stressed that technological advances would simply be something to be considered as part of the decision by, whether strict controls are met.
Judge Amy Coney Barrett, one of the judges at the court with teenage children, also addressed the issue of technology and in particular the effectiveness of content filtering software. She pointed out that “20 years have passed” since the court’s decision in Ashcroftand that young people can now “get online porn through gaming systems, tablets.” “I can say from personal experience,” she ruefully told Shaffer, that content filtering software for various systems that children may use to access the Internet “is hard to keep up with.”
Justice Samuel Alito echoed Barrett’s concerns, asking Shaffer if he knows “many parents who are more tech-savvy than their 15-year-old kids”? “There is a tremendous amount of evidence,” Alito maintained, “that filtering does not work.” Why, he asked, would so many states — 19 in all — have enacted age-verification requirements “if the filtering is so good?”
Justice Ketanji Brown Jackson countered that advances in technology would in any case “cut[] both ways”: While such advances would increase young people’s access to technology and make porn more ubiquitous, she said, it also increases the burdens on adults who want to view porn online because of the greater likelihood that their privacy will be invaded.
Justice Sonia Sotomayor noted that she believed many of her colleagues’ questions actually addressed the question of whether HB 1181 could meet strict scrutiny, rather than the question of what standard of review should apply in the first place. In her view, the answer to the latter question was straightforward, based on Supreme Court cases: strict scrutiny.
Jackson agreed and emphasized that Ginsburg – the case on which the Court of Appeal relied – was a case about the rights of young people rather than the rights of adults.
Shaffer agreed. He told the judges that Ginsberg addressed only the rights of minors and did not impose a general age verification requirement.
But even if the justices ultimately agree that the appeals court applied the wrong standard, the law may remain in effect for the foreseeable future. The challengers had asked the Supreme Court both to find that the 5th Circuit should have applied strict scrutiny and that the law failed that test, but it seemed possible that the justices could ignore the second question and instead send the case back for a new trial. If so, Ezra’s order blocking the law could remain on hold while the case continues, allowing Texas to continue enforcement.
A decision in the case is expected in late June or early July.
This article was originally published on Howe on the Court.
