Politics
While it is unlikely that any of the Court’s upcoming cases will be as significant as Dobbs or Loper, a few interesting items stand out.
While the new Supreme Court term does not promise anything so life-changing as overturning Roe v. Wade, several cases offer a potential change to First Amendment rights, a resolution of questions over trans rights, and a Second Amendment case that can affect a large number of “ghost gun” owners.
The question of the First Amendment and porn is represented by Free Speech Coalition, Inc. v. Paxton, in which the court will consider a Texas law requiring porn websites to verify a user’s age. That 2023 Texas law requires viewers pass some sort of test showing they are over 18, and also requires porn websites to display health warnings about the psychological risks of adult material (which the porn industry disputes) to include “addiction, impaired development, and increased demand for prostitution and child exploitation.” Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah, and Virginia all have similar age-verification laws.
The key point of contention will be whether or not the process “unduly burdens” legitimate adult porn users in pursuit of their First Amendment rights, or whether the state has a “compelling interest” in protecting children such as to require the age-verification test. The Free Speech Coalition, representing the adult film industry, argues, “Of central relevance here, it requires every user, including adults, to submit personally identifying information to access sensitive, intimate content over a medium—the Internet—that poses unique security and privacy concerns.”
At first glance it appears to have all the impact of, say, clicking through a simple age verification box, but in fact the decision could have sweeping implications for First Amendment protections, looking into the broader question of whether the speech rights of adults outweigh potential harms to minors.
First Amendment protections have often cut across the liberal/conservative divide, and the court has generally ruled in favor of protecting children, and so is likely to uphold the Texas age verification test. Oral arguments have yet to be scheduled.
The court will also look at trans rights. In U.S. v. Skrmetti, the Supreme Court will consider a Tennessee law banning gender transition treatments for minors. The law prohibits health care providers from giving hormones or puberty blockers to “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” Two transgender boys and one transgender girl are challenging the law, alongside the Biden-Harris Justice Department and a doctor, claiming it violates the 14th Amendment’s equal protection clause.
More than 20 states (affecting an estimated 100,000 trans adolescents and teenagers) passed laws halting minors’ access to puberty blockers, hormone therapy, or gender-affirming surgery, meaning the justices will in essence decide the constitutionality of gender-affirming care bans for minors using the Tennessee law as an example.