I listened with interest to, and live-tweeted, today’s oral argument in the Supreme Court in Free Speech Coalition v. Paxton. At issue in the case is a Texas law, enacted in 2023, that requires online pornographers to use age-verification technology to prevent children from viewing their sites. Some 18 or so other states have enacted similar laws.

To make a long story short, a coalition of pornographers brought a facial pre-enforcement challenge to the Texas law on the ground that it unduly burdened their First Amendment right to provide non-obscene pornography to adult customers. The law was set to go into effect on September 1, 2023, but a district court issued a preliminary injunction against its enforcement. The Fifth Circuit first stayed the injunction and then, in a ruling in March 2024, vacated it, so the law has been in force since mid-September 2023.

I offer here some quick big-picture comments on today’s oral argument. (Here are the transcript and audio.)

1. Seven of the justices (all but Sotomayor and Jackson) seemed very skeptical that age-verification requirements infringe First Amendment rights. Changes in technology since the Court’s last foray (or shall I say rampage?) in the area in 2004 make online porn all the more ubiquitous and menacing, and also make age verification (common on gambling sites) much simpler and more secure. In the meantime, content filtering has proven ineffective. Brick-and-mortar porn shops can be required to check the age of their customers. Why should it be any different, various justices wondered, for online porn providers?

2. The justices struggled with the standard of review that should apply to the Texas law. The Fifth Circuit majority applied deferential rational-basis review, and I feared that the Court might do nothing more than say that strict scrutiny is required. But most of the justices, including Kagan, seemed concerned that strict scrutiny might be too restrictive. They were exploring ways to determine that the law either was not content-based at all, or fell within an exception to strict scrutiny, or satisfied strict scrutiny. They recognized the need to provide significant guidance to the lower courts.

3. The facial posture of the challenge to the law presents complications that ought to work strongly against the plaintiff coalition of pornographers. The plaintiffs contend, for example, that the law doesn’t allow methods of biometric verification (which don’t require that the customer be identified by name). But Texas says that the law permits biometric methods, and the Fifth Circuit agreed with Texas. Texas courts haven’t had occasion to rule on that important question. But any uncertainty ought to cut against the plaintiffs’ ability to show a probability of success on their First Amendment claim—a predicate to obtaining injunctive relief.

4. Several of the justices seemed intent on making sure that the district court’s preliminary injunction did not immediately pop back into place if the Court vacated the Fifth Circuit’s ruling and remanded for further consideration.

I am hopeful that the case will yield a big victory for the age-verification laws that Texas and other states have enacted—and for parents.