U.S. Supreme Court to Clarify When Government Can Limit Access to Protected Speech
Can the government limit access to certain content, even if the First Amendment protects that content? Several states have passed laws, and are enforcing them, requiring age verification before users can access commercial adult content websites. The United States Supreme Court is set to weigh in on the whether such laws are constitutional.
On January 15, the Supreme Court will hear arguments in Free Speech Coalition v. Paxton. The plaintiffs challenge Texas’s ability to mandate age-verification for access to adult websites. The controversy 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 Court’s ruling could have broader implications. The test the Court adopts could determine whether states can prevent access to other content that states believe might be harmful to minors, such as information related to obtaining an abortion. Abortion funds have already brought legal challenges claiming that Texas law wrongly prohibits them from providing information to pregnant women.
In general, the Supreme Court has sharply limited states’ ability to limit access to protected speech, but does that analysis change when a law attempts to protect minors? Soon we will know the answer to that question.
How We Got Here
The plaintiffs initially secured an injunction from a Texas federal court preventing enforcement of the law on First Amendment grounds. Texas appealed and obtained a stay from the U.S. Court of Appeals for the Fifth Circuit, permitting the law's enforcement.
In reaching that decision, the Fifth Circuit found that the “rational basis” test should apply in determining if such laws to protect minors are constitutional. The rational basis test upholds laws that are rationally related to a legitimate governmental interest. The plaintiffs argued that such restrictions on speech should be determined under the “strict scrutiny” test. Under the strict scrutiny test, the state would need to show it had a compelling interest in adopting the law, that the law was narrowly tailored to achieve the state’s interest, and that it infringed on protected speech in the least restrictive way possible.
Ultimately, the Supreme Court’s decision will tell courts how to evaluate a restriction on minor’s access to speech. The test the Supreme Court will implement is important because from a practical standpoint almost all laws reviewed under the rational basis test are determined to be constitutional and almost all laws reviewed under the strict scrutiny test are held unconstitutional.
There are a long line of cases addressing protecting minors from potentially harmful conduct. In 1968, the Supreme Court decided Ginsberg v. New York under the rational basis test. That case decided a New York law criminalizing the sale of certain magazines to minors was constitutional, finding that states could adopt more stringent standards for safeguarding minors.
More recently, the Supreme Court has applied strict scrutiny to those types of laws, determining that portions of the Communications Decency Act and the Child Online Protection Act (COPA) were unconstitutional. In part, those decisions recognized that laws applying to minors would also have an impact on adults’ access to protected speech.
In Ashcroft v. ACLU, the Supreme Court found COPA, a federal law passed to prevent minors from accessing pornography online, was unconstitutional. The Court applied strict scrutiny in reaching that decision, and much of the basis for the final outcome was that the law prohibited websites that would be acceptable in certain communities because other more “puritanical” communities would find the material to be obscene. The distinction between Ashcroft and Free Speech Coalition is the nationwide applicability of COPA versus the Texas-only applicability of the law at issue now in Free Speech Coalition. Even without upsetting prior precedent, this distinction could lead to a different outcome.
Another question for the Supreme Court to consider is whether restricting minors’ access to pornographic content also hinders adults from accessing it. Does the requirement to verify the age of adult websites place a barrier between adults and the content on those websites? If so, that might counsel for continuing to apply strict scrutiny in determining whether the law is constitutional.
Similar Laws in Other States and the Impact of the Supreme Court’s Ruling
Several states, including Alabama, Florida, Louisiana, Mississippi, North Carolina and Tennessee, have enacted similar laws requiring age verification for accessing adult material deemed harmful to minors. The Supreme Court's decision is expected to significantly influence the enforcement of these laws across the country. This decision also may affect challenges to state abortion laws, which certain advocacy groups argue restrict speech. It may also play a role in the many cases currently being litigated regarding restricting minors’ access to certain books.
Please contact Chantel Batista Mullins, Andrew Coffman or any member of the Phelps Media and First Amendment Law team if you have questions or need advice or guidance.
