Free Speech Coalition v. Paxton Offers an Opportunity to Clean Up Online Pornography Case Law

The Supreme Court’s oral argument yesterday in Free Speech Coalition v. Paxton concerns a First Amendment challenge to a Texas age-verification law that prohibits minors from accessing pornography online. The law at issue, H.B. 1181, is not a prohibition on adults viewing pornography, but a requirement that online pornographers take steps to use commercially reasonable age-verification technology to ensure that their customers are not children. The statute applies to commercial entities that knowingly and intentionally publish material on the internet, including social media platforms, “more than one-third of which is sexual material harmful to minors.” Not included are news organizations or internet service providers and other entities that happen to provide access to prohibited content they don’t control by way of search engines.

How to assail such a common-sense law? In short, cast adult access to the content as a fundamental right and focus the argument on supposed burdens to adults under the strict scrutiny standard. That argument found success in the district court, which enjoined the age-verification requirement before the injunction was vacated by the Fifth Circuit. The question presented focuses on the appeals court’s application of rational-basis review rather than strict scrutiny, though the Court’s opinion will likely offer guidance beyond that specific question.

The challenge faces an uphill battle. Both sides agree that protecting minors from pornography is a compelling government interest. They recognize that the Supreme Court in Ginsberg v. New York (1968) allowed states to protect minors from access to sexual material reasonably found harmful to them. And by the time it decided Miller v. California (1973), the Court had “categorically settled . . . that obscene material is unprotected by the First Amendment.”

Unlike truly content-based speech restrictions, threshold determinations of whether content is constitutionally protected in the first place do not trigger strict-scrutiny review. Justice Samuel Alito observed during argument that “if a law prohibits or regulates a type of speech that is not entitled to any constitutional protection, the content of the speech does have to be examined at the outset to determine whether it falls within that category. And the fact that that preliminary examination is necessary does not mean that the law is content-based and, therefore, subject to strict scrutiny.” To conclude otherwise would incur perverse First Amendment consequences, such as extending the highest level of scrutiny to prohibited speech that facilitates crime. As Texas’ brief argued, “H.B. 1181 is not a content-based restriction on protected speech. It is a requirement that speakers serve as the gatekeeper when their speech is unprotected as to certain listeners.”

Justice Neil Gorsuch pointed out that Texas was confronted with a facial challenge, which, as indicated last year in Moody v. NetChoice, the Court has made difficult to win. Moreover, as Justices Clarence Thomas and Amy Coney Barrett recognized, the protection of children in this context may have the effect of watering down the strict scrutiny test, if that were designated the operative standard of review here.

The parties challenging the law are a group of pornographic industry entities that include the operator of Pornhub—a name that does not appear in the petitioners’ brief, but is the 12th most visited website in the world and an exemplar of the grotesque and violent forms of obscenity that have flooded the internet. The petitioners had little to say in their briefing about the details of what they produce, and during oral argument their counsel pleaded ignorance as to how much of his clients’ content is obscene as applied to children before conceding it was at least as high as 70%. (A lowball concession that high says a lot.) And just as they were cagey about the smut they produce, the petitioners tried to disregard the principle of Ginsberg, a case involving the sale of prohibited material to a sixteen-year-old over the counter, with arguments drawing from cases from over twenty years ago that are oblivious to the development of reliable age verification.

Past decisions involved the crude and imprecise scrambling of adult cable channel signals in 2000 (United States v. Playboy Entertainment Group) and extension of that logic to the Child Online Protection Act’s similarly blunt early regulation of the internet in 2004 (Ashcroft v. American Civil Liberties Union). These cases were distinguishable on other grounds, from tamer content to the diminished role of age verification, which was usable only as a defense under the early internet law.

But twenty years later, as the toxicity of the prohibited content has increased, we also have reliable age-verification technology. And it is not subject to the retention of any identifying information of individual users. It would make no more sense for the Court to prohibit the use of that tool than to overrule Ginsberg itself. And if Ashcroft truly meant to change the applicable standards, it would be better for the Court to overrule it than to allow it to confuse this area of free speech. Ashcroft identified as less restrictive the petitioners’ proposed alternative method of protecting minors—content-filtering—but that has proven ineffective, as Justices Alito, Brett Kavanaugh, and Barrett recognized during argument.

Chief Justice John Roberts, struck by the “dramatic change” in this area over the years, raised the point that “there are cases where the technological developments caused the Court to reconsider the precedents that were developed . . . prior to very significant changes.” Of course, “the principles of the First Amendment don’t change with technology, but the application of technology to the First Amendment questions can alter the perspective in terms of what is affecting the principles and what isn’t.”

Age-verification laws are immensely popular among the public, and similar laws have been passed in numerous other states as well as countries overseas. The Texas legislature passed H.B. 1181 by a vote of 164–1. That wide acceptance is not dispositive in deciding constitutional questions, of course, but here, it may reflect a measure of common sense sufficient to resist a libertine distortion of the First Amendment. It would be a bonus if in the process the Court cleared away the confusion of earlier cases in which past justices needlessly invalidated protective measures for the sake of ever-changing technology they did not understand.