SCOTUS Appears Poised to Maintain Strict Standard of Review for Limiting Access to Protected Speech
The United States Supreme Court appears unlikely to affirm the ruling by the U.S. Fifth Circuit Court of Appeals that watered down the standard of strict scrutiny applied to a state law raising First Amendment concerns.
The Supreme Court recently heard arguments in Free Speech Coalition v. Paxton, in which the plaintiffs challenge Texas’s ability to mandate age verification for access to adult websites. The dispute arises from a 2023 Texas law, H.B. 1181, which imposes new requirements on commercial pornographic websites to verify users' ages and display health warnings about the effects of pornography consumption.
The case has implications beyond pornographic websites because the standard could be applied to a minor’s access to other content, such as violent films. Furthermore, First Amendment decisions relating to pornography can later be used by courts in other types of media cases.
The arguments displayed the judiciary’s continuous struggle to apply pre-internet laws to contemporary challenges. The discussion centered on comparing Free Speech Coalition v. Paxton with Ginsberg v. New York, a 1968 decision that found it permissible for New York to restrict minors’ access to nude magazines. The Fifth Circuit cited Ginsberg when holding that a lower standard of scrutiny, so called “rational-basis review,” applied to the recent Texas law.
Burdens on Speaker and Listener
Although the holding in Ginsberg did not concern the burden of age verification on adults who seek to access content that is restricted for minors, the Justices debated the difference between showing identification at a brick-and-mortar store versus on the internet. Justice Amy Coney Barrett teed up a question on why age verification is “uniquely burdensome” online. Plaintiffs maintain that, unlike flashing an ID at a clerk in a store, entering identification online can create a permanent record subject to surveillance and hacking.
Justice Neil Gorsuch was skeptical of the distinction, noting all the contexts in which adults must show ID: gambling, buying a gun, even voting in certain states. Plaintiffs countered that those contexts do not involve the First Amendment, where chilling of speech is a concern. They suggested that Texas legislators’ real motivation was to dissuade adults from viewing the content, a contention that Texas denies. Plaintiffs also argued that the cost of implementing age verification online amounts to a tax on the speaker.
Content filtering was also a hot topic at the argument, with plaintiffs advocating the software as an alternative. Justice Barrett expressed skepticism about the technology “from personal experience,” and Justice Samuel Alito provoked laughter when he asked the lawyer for plaintiffs, “Do you know a lot of parents who are more tech-savvy than their 15-year-old children?”
The Role of History and Tradition
Ever since the Court held in New York State Rifle & Pistol Association v. Bruen that the standard for evaluating Second Amendment challenges to firearm regulations is the nation’s “history and tradition,” Court watchers have been on the lookout for other domains where the justices will apply this test. In Vidal v. Elster, the Court held that the First Amendment did not protect a trademark applicant’s right to register “Trump Too Small” as a trademark because of the “history and tradition” of prohibiting a person from registering a trademark that identifies a particular living individual. Justice Clarence Thomas’s majority opinion in that case provoked sharp criticism from concurring justices.
In Free Speech Coalition v. Paxton, lawyers for both the United States (who agreed with plaintiffs that rational-basis review was the wrong standard) and Texas appealed to the history and tradition argument, noting that the United States has always treated content for minors differently. In response, however, Justice Thomas implicitly strayed from his favored parameter, stating that the Texas law was “in an entirely different world” than a prior case “about squiggly lines on cable TV” while another precedent harkened from “a world of dial-up Internet.”
Procedural Confusion
The justices asked a surprising number of questions about the practical effect if they were to overturn the Fifth Circuit, asking whether the district court’s injunction on Texas’s law would go back into effect, or would the Fifth Circuit decide the status quo?
Ultimately, though, the justices repeatedly returned to the standard of strict scrutiny. Justices Alito and Kavanaugh questioned the lawyers on whether and how Texas’s law would meet that threshold. Justice Sonya Sotomayor asked plaintiffs’ counsel to confirm that to apply anything other than strict scrutiny “would be overturning at least five precedents.”
Said Justice Ketanji Brown Jackson: “So we don't need a new set of principles or tests. We have a test. The test is strict scrutiny.”
Please contact Elana Beiser, Andrew W. Coffman, Mary Ellen Roy or any member of the Phelps Media and First Amendment Law team if you have questions or need advice or guidance.