The U.S. Supreme Court hears challenge to Texas law protecting minors from online porn

Last week, the U.S. Supreme Court examined a First Amendment challenge to a federal law that could spell the end of the social media platform TikTok. On Tuesday, the justices will go back into the online world in a First Amendment challenge to a state law aimed at protecting minors from harmful sexual materials.

The court will hear arguments in Free Speech Coalition (members of the adult entertainment industry) v. Paxton (Texas Attorney General Ken Paxton). The justices will focus their questions on what standard should be used to judge the constitutionality of Texas House Bill 1181, enacted into law in June 2023. Should the law undergo the Constitution’s toughest test–-strict scrutiny–-which laws often fail, or the Constitution’s least demanding test–- rational basis?

Not surprisingly because the case involves minors, pornography and online speech, it has drawn a broad range of competing amicus briefs from states with similar laws, religious organizations, technology groups, First Amendment scholars, and others.

Texas tells the court that H.B. 1181 was enacted to respond to a “public health crisis.” In its brief to the court, the state attorney general wrote:

“Through smartphones and other devices, children today have instantaneous access to unlimited amounts of hardcore pornography—including graphic depictions of rape, strangulation, bestiality, and necrophilia. Like ‘doomscrolling’ on social media, online pornographers use sophisticated algorithms to keep adults who have greater maturity than children on their sites. Childhood access to this avalanche of misogynistic and often violent smut ‘is creating a public health crisis.’”

The law requires age verification by commercial websites with content that is more than one-third sexual materials harmful to minors. Those websites must “verify that an individual attempting to access the site is” at least 18 years old, by using “digital identification,” “government-issued identification,” or “a commercially reasonable method that relies on public or private transactional data.” Although the website may not retain any identifying information of the potential user, it does not impose security standards on it.

The U.S. Court of Appeals for the Fifth Circuit threw out a lower court’s temporary injunction blocking the law. The appellate court relied on a 1968 Supreme Court decision– Ginsberg v. New York. In that ruling, the justices used the rational basis standard of review to uphold a state law prohibiting brick-and-mortar retailers from knowingly selling sexually harmful materials to minors under 17.

Let’s pause a moment to explain standards of review in a nutshell. The justices have devised essentially three standards for weighing the constitutionality of government actions that burden fundamental rights– here, the First Amendment’s free speech guarantee.

Strict scrutiny: The most demanding test. The government must show that it has a compelling interest for the act, and that the act is narrowly tailored to further that interest.

Intermediate scrutiny: Less rigorous than strict scrutiny. The government must prove it has an important interest and the means chosen are substantially related to that interest.

Rational basis: The most lenient of the three tests. The government must show it has a legitimate interest and there is a rational connection between the interest and the means chosen to further it.

Courts generally apply strict scrutiny to laws that regulate speech based on its content, and those laws often fail under that review. But over the years, the Supreme Court has made exceptions: government can regulate obscenity and also sexual materials that are not obscenity but are harmful to minors (the Ginsberg decision). 

In the Texas case, the Free Speech Coalition argues that strict scrutiny is the proper standard to apply to the state law. It relies not on Ginsberg but on the Supreme Court’s more recent decision, Ashcroft v. ACLU, in 2004.

In Ashcroft, the justices considered a challenge to the Child Online Protection Act which prohibited—absent age-verification measures—the online transmission of content that Congress deemed obscene for minors. The justices applied strict scrutiny because the federal law also burdened adults’ access to speech constitutionally protected for them. They ruled that the law was likely unconstitutional because “less restrictive alternatives,” like content-filtering software, “would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”

Free Speech Coalition contends that the Texas law is remarkably similar to the unconstitutional federal law. The law, it argues, is over-inclusive because its definition of materials harmful to minors applies “to broad swaths of speech that are not sexual—much less obscene- even as to minors, “from sex-education content to simulated sex scenes in Oscar-winning films.” And it is under-inclusive because the law has exceptions, such as for search engines and social media sites. 

Online age verification creates a chilling effect and raises privacy concerns in this age of hackers and data breaches, according to the Coalition. Finally, it argues, there are less restrictive ways to address the problem, such as content filtering software that has improved substantially since the 2004 Ashcroft decision.

Texas counters that Ashcroft did not overrule Ginsberg and that decision’s rational basis review for determining initially whether the content at issue is protected speech. If Ashcroft means that the state can’t use the same age verification requirement that it imposes on gambling websites and the sale of alcohol, then Ashcroft should be overruled, Texas contends.

Texas also argues that content filtering is not as effective as age verification and Free Speech Coalition has not shown that it is. Free Speech Coalition, it adds, has not shown the law is unconstitutional in all of its applications– which it must do in the kind of facial challenge it has mounted and “did not identify a single adult who has been chilled from visiting their websites, and they cannot show that any (nonexistent) injury outweighs harm to children.”

After more than a year of enforcement of the law, Texas says, “the sky has not fallen.”

The Biden Administration filed a brief supporting Free Speech Coalition and will participate in the arguments. But the U.S. solicitor general also urges the court to send the case back to the appellate court to apply the proper standard of review.

The Roberts Court has been a strong defender of the First Amendment’s speech guarantee, particularly of speech we don’t like. But the court, as evidenced by its child pornography rulings, also has been protective of minors.

Much has changed content-wise in the online world since the 2004 Ashcroft decision and that makes this case, like TikTok, especially interesting to watch for what and how the justices decide it. You can tune into the argument here.

Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.