Jurisprudence
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The Supreme Court heard arguments in Free Speech Coalition, Inc. v. Paxton on Wednesday, a major First Amendment case that serves as good barometer for your hierarchy of fears about American life today. Which worries you more: Minors’ access to online pornography or government censorship of the internet? Both anxieties are reasonable; nobody wants children to be exposed to porn, but states’ recent efforts to limit their exposure raise serious constitutional concerns. As the justices attempted to balance these interests, one thing became clear: The Supreme Court is done serving as the staunch watchdog of free speech on the internet. For decades, the court has resisted efforts to relax First Amendment principles in response to perceived threats to youth from evolving technologies. No longer. However this particular dispute gets resolved, a majority has evidently decided to retreat from landmark precedents that helped establish the open internet.
Free Speech Coalition marks a challenge to a Texas statute that compels certain pornographic websites to verify that users are over the age of 18. It applies only to sites on which “more than one-third” of content “is sexual material harmful to minors,” targeting major companies like PornHub. Nearly half the states have enacted these laws, and while the details vary, the basic idea is the same: Every user has to prove their age before accessing explicit material, usually by presenting a government-issued ID through an age-verification tool.
Members of the adult film industry sued to halt Texas’ law, arguing that it violated the First Amendment. A district court agreed and froze the measure, citing a string of precedents that cast doubt on its constitutionality. The Supreme Court has long held that state efforts to restrict sexual expression are subject to strict scrutiny because they discriminate on the basis of content. These laws must therefore be “narrowly tailored” to serve a compelling interest. And while protecting children from exposure to pornography is indisputably a compelling interest, the district court found that Texas’ proof of age requirement was not narrowly tailored under past precedent.
The district court was on firm ground here. SCOTUS has previously applied that principle across technological advancements: In 2000’s U.S. v. Playboy, for example, it invalidated a law prohibiting TV stations from playing porn during daytime hours. And in 2004’s Ashcroft v. ACLU, it blocked a federal law—which was extremely similar to Texas’ new statute—that forced website to verify users’ age before showing them sexual content. In these cases, the Supreme Court held that the regulations in question flunked strict scrutiny, pointing to less restrictive ways that parents could stop their children from accessing porn.
But the far-right U.S. Court of Appeals for the 5th Circuit disagreed and upheld the law.