Will Texas’ contempt for pornography lead the Supreme Court to curb constitutional rights?
That’s how an adult industry trade group and others have framed the stakes of a high court hearing set for Wednesday in Washington. The justices are considering a state law that Texas lawyers say is meant to protect children but challengers say raises First Amendment problems for adults.
The legal question before the court is the proper standard of review for considering the issue — the sort of thing that sounds dry but has important implications for how courts decide cases. The 5th U.S. Circuit Court of Appeals used a lenient standard called “rational basis” review to undo a preliminary injunction against the law.
The challengers in Free Speech Coalition v. Paxton argue that “strict scrutiny” should apply and that the law — called H.B. 1181 — most likely fails under that stricter standard. They concede the state’s compelling interest in protecting minors from harmful sexual content, but they tell the justices that the law isn’t narrowly tailored enough to survive constitutional scrutiny.
They say the law is “overinclusive” because it applies to websites that contain up to two-thirds material that isn’t obscene even for minors, that it’s “underinclusive” because it exempts search engines and social media and that it’s not the least restrictive means of attaining the state’s goal, arguing, among other things, that an age verification requirement for material considered obscene for minors would be far less restrictive than the law at issue, which applies to sites that contain up to two-thirds protected speech.
Texas, meanwhile, tells the justices that the law addresses a public health crisis without restricting adults’ access to porn; rather, it simply imposes an age verification requirement.
Texas tells the justices that the law addresses a public health crisis without restricting adults’ access to porn. “Petitioners cannot show that H.B. 1181 is unconstitutional under the correct level of scrutiny — rational basis — or any other,” the state argues, adding that the challengers didn’t “identify a single adult who has been chilled from visiting their websites, and they cannot show that a single adult who has been chilled from visiting their websites, and they cannot show that any (nonexistent) injury outweighs harm to children.” Urging the justices to maintain the status quo while litigation continues, Texas says enforcement of the law has been permitted for more than a year and “the sky has not fallen.” The hearing takes place against the backdrop of a 2004 Supreme Court precedent called Ashcroft v. ACLU. In that case involving a federal law similar to the Texas law, the court said the federal law most likely violated the First Amendment by restricting too much protected speech and by not using the least restrictive means available. In its brief ahead of the hearing, Texas suggested the justices should overrule the Ashcroft precedent if needed to side with the state. So in addition to presenting the theme of the Roberts court’s handling of precedent, it’s also the latest case on appeal from the 5th Circuit, whose judges have sometimes gone too far even for this high court. Wednesday’s hearing should give us a clue as to whether this will be the latest instance of the justices’ telling the appeals court that it’s out of line. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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