Pornography is among the subjects the Supreme Court will consider in the new term starting next month — specifically, whether a Texas law’s age verification requirement for accessing online sexual content violates the First Amendment.
The 2023 law imposes requirements on any commercial website where more than one-third of its content is “sexual material harmful to minors.” The issue on appeal isn’t so much whether protecting children is laudable, but whether in pursuit of that stated goal the Texas law wrongly restricts adults.
The challengers, including an adult industry trade group, argue to the justices in a brief filed this week that the age verification requirement “is unconstitutional under a straightforward application of First Amendment principles and precedent.” They say the law forces adults “to incur severe privacy and security risks — which the statute leaves largely unaddressed — before they can access constitutionally protected speech.”
After the case, called Free Speech Coalition v. Paxton, is argued in the new term, a decision is expected by July.
The appeal comes out of the 5th U.S. Circuit Court of Appeals, where a divided three-judge panel condoned the age verification requirement. In ruling that the First Amendment wasn’t violated, the panel majority said the restriction “is rationally related to the government’s legitimate interest in preventing minors’ access to pornography.”
But the question presented to the Supreme Court is whether the 5th Circuit asked the right question in arriving at that answer. That is, the legal issue that the justices have accepted for review is: “Whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.” The panel applied the less stringent “rational basis” test, which is easier for the government to pass. But the challengers say Supreme Court precedent mandates the more stringent “strict scrutiny” test in this situation. Under that test, any restriction must be narrowly tailored to promote a compelling government interest and use the least restrictive means of protecting minors. The challengers say the law fails that test. As we saw most recently this past term, the Supreme Court doesn’t mind telling the 5th Circuit when the justices think the federal appeals court is out of line. The challengers, represented by the American Civil Liberties Union, are hoping this case presents one of the latest instances of that phenomenon. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
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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