Ethan Oppenheim | Free Speech Coalition, Inc. v. Paxton

INTRODUCTION

While it is uncontested that the First Amendment’s freedom of speech clause protects political speech, it is contested as to how far in scope the clause extends to protect sexual or obscene material such as pornography. Historically, the Supreme has distinguished between obscene sexual material and non-obscene sexual material, treating the former as outside the scope of the First Amendment and the latter as within the scope. Thus, the Court treats non-obscene sexual content as constitutionally protected to the fullest extent for adult consumers, while permitting that it may be rationally restricted for minors. Id. While legislatures may permissibly limit minors “access to sexual content, laws that consequently burden adults” access to such content “can stand only if [they] satisf[y] strict scrutiny.” United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000); Ashcroft v. ACLU, 542 U.S. 656, 665-66 (2004); Reno v. ACLU, 521 U.S. 844, 874 (1997); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

In June 2023, Texas Governor Greg Abbott signed H.B. 1181 into law, which requires “a commercial entity” that publishes material on an internet website, “more than one-third of which is sexual material harmful to minors,” to verify the age of every user before permitting access. Tex. Civ. Prac. & Rem. Code § 129B.002(a). The Act lays out two requirements that websites must meet. First, websites must “verify that an individual attempting to access the material is 18 years of age or older.” Id. Second, they must provide a “health warning” that the Act prescribes for regarding such sexual materials.

            Before H.B. 1181 was scheduled to take effect on September 1, 2023, petitioners sought a preliminary injunction barring its enforcement. The United States Court for the Western District of Texas granted the injunction in August 2023, holding that the age-verification and health warning requirements likely violated plaintiffs’ First Amendment rights. Applying strict scrutiny review, which requires that a law be narrowly tailored to achieve a compelling governmental interest, the district court acknowledged the State’s compelling interest in limiting minors’ access to pornographic material but found that H.B. 1181 was not narrowly tailored to achieve that interest. Instead, it found the law is both underinclusive and overly restrictive.

The State appealed to the Fifth Circuit Court of Appeals, which stayed the injunction and ordered expedited briefing and argument. Six months later, the Fifth Circuit unanimously affirmed the injunction against the health warning requirement, finding that it unconstitutionally compelled speech but vacated the injunction against the age-verification requirement by a 2-1 vote. The slim majority held that the proper standard of review to apply to the age-verification requirement is rational basis, not strict scrutiny. Using this weaker standard, the court held that the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography.

The Free Speech Coalition filed a Petition for a Writ of Certiorari, arguing that the Fifth Circuit erred in applying rational-basis review instead of strict scrutiny. The Supreme Court granted certiorari in July 2024.

ISSUE PRESENTED

Did the Fifth Circuit Court of Appeals err as a matter of law in applying rational-basis review to a law burdening adults’ access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done?

THE ARGUMENTS

Petitioners argue that the Fifth Circuit’s application of rational-basis review conflicts with Supreme Court precedent, which instead requires strict scrutiny. They argue that, while the Texas law in question aims to restrict minors’ ability to access sexual material, the act’s age-verification requirement burdens adults’ access to such content by inflicting a profound chilling effect on adults. The age-verification requirement would require users to “submit personally identifying information that could be leaked, stolen, or otherwise used for purposes of embarrassment or extortion,” which would pose unique security and privacy concerns resulting in adult consumers, in turn burdening adults’ access to constitutionally protected expression.

Applying a strict scrutiny standard, petitioners argue, would render the Act unconstitutional on the grounds that the law is not narrowly tailored to achieve the goal of protecting minors from pornography. The law is both overly restrictive, in that it imposes burdens on adults, and underinclusive, in that it “fails to reduce the online pornography that is most readily available to minors” by exempting search engines and social media sites. Further, plaintiffs contend that, “even according to Texas’s own evidence,” there were alternative measures available to address the State’s interest that were both less restrictive and more effective, such as “modern, much-improved versions of the content-filtering software.” The fact that the Act imposes “burdensome restrictions on the online pornography industry” while “leav[ing] unregulated the extensive volume of sexual content on social-media websites and search engines” demonstrates that the Act allows for speaker-based discrimination. As petitioners point out, speech restrictions targeting “speakers and their messages for disfavored treatment” are also subject to strict scrutiny. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011); R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 394 (1992).

The State of Texas responds that the Fifth Circuit correctly applied rational basis review pursuant to the Supreme Court’s decision in Ginsberg v. New York, the Court held that since the Constitution does not guarantee minors the same right of access to pornographic materials as adults, a legal restriction that applies to minors is only subject to rational-basis review. 390 U.S. 629 (1968).

The State argues that the Act easily survives rational-basis review. First, the State has a legitimate and compelling interest in “preventing children from accessing pornography on the internet.” Further, the Act is rationally related to the State’s interest in preventing children from accessing pornography on the internet, and it is “reasonable to require [websites] to check their users’ ages before [permitting] access.”

Petitioners distinguish the present case from Ginsberg arguing that in the previous case, the law in question did not burden adult’s access to the restricted material. Instead, it merely had to do with selling explicit magazines to minors. Petitioners rely on two cases to support their distinction. In Reno, the Supreme Court applied strict scrutiny to its assessment of the Communications Decency Act of 1996 (CDA), a law designed to protect minors from “indecent” and “patently offensive” communications on the Internet. Reno, 521 U.S. at 849. It did so on the grounds the law “effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive and to address to one another.” Id. at 874. Similarly, in Ashcroft, the Court applied strict scrutiny to the Child Online Protection Act (COPA), designed “to protect minors from exposure to sexually explicit materials on the Internet.” Ashcroft, 542 U.S. at 659. The Court reiterated Reno and further specified that in cases in which laws burden adult’s access to constitutionally protected speech, the government must show that the challenged regulation “is the least restrictive means among available, effective alternatives.” Id. at 666. Therefore, since the Act in this case is more akin to those in Reno and Ashcroft than to that in Ginsberg given the burdens placed on adults' access to constitutionally protected materials, the Court ought to apply strict scrutiny.

The State argues that Texas’ new regulation is more akin to Ginsberg. The State, relying on the Fifth Circuit’s holding, suggests that the only reason that the Court applied strict scrutiny in Ashcroft instead of rational-basis review is because Congress did not challenge the scrutiny standard, and it “would have been atypical for the Court to sua sponte raise the issue.” Id. Finally, the State argues that both the CDA and COPA criminalized the displaying of messages and posting of content, respectively, that are available and harmful to minors. Id. at 28–29. Further, the CDA omitted an element present in the test established in Miller v. California, 413 U.S. 15 (1973) that obscenity must relate to “sexual conduct.” Id. at 28. Thus, in both of these cases, the laws are overbroad, while H.B. 1181 neither criminalizes pornography as a whole nor omits this element of the Miller test. Id.

LOOKING FORWARD

The outcome of this case will have massive implications on the scope of the First Amendment. If the Court were to rule in favor of the petitioners and overturn H.B. 1181 under a strict scrutiny analysis, then it would affirm a broad scope of the First Amendment’s application to non-obscene sexual material, even that which may fall on the eyes of children. It would signal to states that any attempts to restrict minors’ ability to access pornographic material must be so narrowly tailored as to avoid burdening adults’ access to such material at all. In this scenario, it would be more difficult for states to achieve the interest of preventing children from viewing potentially harmful material, but it would also extend and ensure greater protections to individuals under the First Amendment.

On the other hand, if the Court were to rule in favor of the State and uphold the age-verification requirement under rational-basis review, then it would affirm a narrower scope of the First Amendment’s application to sexual content. It would signal to pornography providers that states may permissibly require them to take greater measures to ensure that minors cannot access their content, even if such measures consequently burden adults’ constitutionally-protected access to their content. Further, it may demonstrate a broader willingness, beyond First Amendment considerations, on the part of the Court to favor state interests over broad interpretations and extensions of the scope of constitutionally protected liberties. Whichever position the Supreme Court takes will have dramatic implications on both constitutional law and on society as a whole.

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