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Free Speech Coalition v. Paxton
Free Speech Coalition v. Paxton is a pending United States Supreme Court case about whether states may require Internet pornography websites to verify the age of viewers in order to prevent access by minors. BackgroundCase backgroundIn 2023, the Texas Legislature enacted House Bill 1181,[1] a law requiring age-verification on websites with more than a third of its content "harmful to minors",[2] by a broad bipartisan vote.[1] The Free Speech Coalition, a trade association for the pornography and adult entertainment industry, sued to challenge the law.[2] By the FSC's count, Texas was among 23 states that had adopted similar laws in 2023 or 2024.[2] The district court struck down the provision,[1] but the United States Court of Appeals for the Fifth Circuit reversed that ruling and upheld the age-verification requirement.[2] However, the Fifth Circuit affirmed the district court's decision to strike down another provision of H.B. 1181 that required the websites to post warnings about health dangers of pornography.[2] Whereas the district court used the strict scrutiny standard to evaluate the law, the Fifth Circuit used a rational basis review, which places more weight on the state's purpose for the law than on rights infringement.[3] The majority opinion for the Fifth Circuit panel was by Judge Jerry Smith, who said that the age-verification requirement was within the state's legitimate interest in preventing minors' access to pornography.[1] Judge Patrick Higginbotham dissented, saying that the law infringed adults' protected speech and had chilling effects.[1] The Supreme Court declined to block the Texas law pending appeal.[2] Previous casesApplying rational basis review, the Supreme Court upheld state laws banning the sale of pornography to minors in Ginsberg v. New York (1968), provided that it was "obscene as to minors" – even if it would not meet an ordinary legal test for obscenity as to adults.[4] In Ashcroft v. American Civil Liberties Union II (2004), the Supreme Court affirmed a preliminary injunction against the Child Online Protection Act, a federal law that required age verification for commercial websites hosting "material harmful to children". In a 5–4 decision written by Justice Kennedy, the Court applied strict scrutiny and said that the government had not shown that voluntary use of filtering software by parents – a less restrictive alternative – was inadequate to meet the government's interest in protecting minors.[4] Supreme CourtThe Supreme Court certified the case on announced on July 2, 2024.[4] The case was heard by the Supreme Court on January 15, 2025. Besides the parties to the case, the Biden administration was given time to present arguments challenging the Fifth Circuit's ruling, neither in support or opposition to the law, but to argue the Fifth should have evaluated the law under strict scrutiny.[3] Court observers stated that the six conservative justices along with the more liberal Kagan appeared to be in favor of requiring tighter controls to access pornography; the conditions around Ashcroft, where the Court had ruled that filtering software could be used, were no longer reasonable due to the ubiquitiness of devices like iPhones and youth typically being more tech savvy than their parents and able to bypass these filters. Only Alito supported the use of the rational basis standard to review Texas law, while the other Justices suggested an intermediate scrutiny that would allow states to require verification for pornography but not for all sexual-related materials, such as information related to LGBTQ culture.[5] References
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