The Supreme Court’s Republican-appointed majority ended the term by ruling against the adult entertainment industry in a First Amendment case involving pornography. In an opinion by Justice Clarence Thomas, the court said the power to require age verification to access sexual content online is within a state’s authority to prevent children from accessing explicit content.
While agreeing about the importance of protecting children, Justice Elena Kagan’s dissent for the Democratic appointees emphasized that the First Amendment protects sexually explicit material for adults. “So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children,” she wrote.
An adult industry trade group and others challenged a Texas law on constitutional grounds, arguing that the verification process imposes too great a burden on adults’ access to legal content. Texas said it’s trying to protect kids in a public health crisis of pornography.
The question presented to the justices involved the legal standard courts should use to analyze the law. The 5th U.S. Circuit Court of Appeals used a standard that’s deferential to the government, called “rational basis” review, when it undid a trial court’s preliminary injunction that had blocked the law. The challengers argued the more demanding “strict scrutiny” standard should apply.
Thomas’ opinion rejected both sides’ arguments about which level of scrutiny should apply. He said an intermediate level of scrutiny applies and that the law here passes it. Applying that intermediate standard, he said the law “advances the State’s important interest in shielding children from sexually explicit content.” Kagan said in dissent that the law should be subject to strict scrutiny because it “covers speech constitutionally protected for adults; impedes adults’ ability to view that speech; and imposes that burden based on the speech’s content. Case closed.” She said the majority gave short shrift to speech rights and that she “would demand Texas show more, to ensure it is not undervaluing the interest in free expression.” 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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