On Wednesday, the Supreme Court heard a significant First Amendment case involving pornography, a case that has not been seen in over two decades. The case, Free Speech Coalition v. Paxton, centers on a Texas law that requires websites publishing significant amounts of “sexual material harmful to minors” to verify the age of users before they can access that content.
The law is similar to a federal age-gating requirement that the Supreme Court struck down in Ashcroft v. ACLU (2004). The federal law did not meet the “strict scrutiny” test, which requires a law to be “narrowly tailored” to advance a “compelling” goal to survive. The Court applied this test to the federal law, ruling that it did not meet the standard.
However, most of the justices seem to believe that Ashcroft is obsolete, given the invention of the iPhone and the proliferation of internet-connected devices that can be used by children to access pornography. Justice Amy Coney Barrett noted that Ashcroft was decided before the invention of the iPhone, and Justice Samuel Alito mentioned that there is “huge volume of evidence that filtering doesn’t work” because children are often more tech-savvy than their parents.
The Court is likely to reduce the level of First Amendment protection afforded to online pornography, but it is unclear how much they will reduce it. The justice’s opinions vary, with some advocating for stricter standards and others for more relaxed ones. Justice Alito proposed that the lowest level of constitutional scrutiny, known as “rational basis,” should apply to laws like Texas, which would be a catastrophe for free speech. However, most of the justices seemed to recognize that Alito’s proposal goes too far and would prevent adults from accessing sexual content they have a constitutional right to see.
The Court also appeared to believe that the government must have the power to restrict children’s access to porn, with Justice Kagan stating that “it’s got to be the case that states can do some regulation in this area.” Chief Justice John Roberts expressed concerns that the current speech-protective regime is not compatible with the modern internet.
The oral argument in Free Speech Coalition bore more resemblance to a meeting of lawmakers trying to decide what should be in an anti-porn bill rather than a meeting of judges trying to decide how to apply the Supreme Court’s First Amendment precedents to a particular case.
The outcome is uncertain, and it is unclear how the Court will rule. The justices must decide whether to apply “strict scrutiny,” “intermediate scrutiny,” or a new legal standard to laws targeting minors’ access to sexual speech online. The questions raised include what kind of content will the Court allow the government to place a gate around, and whether a state can bar children from accessing online forums or reading a transgender author’s memoir.
Ultimately, the Court’s decision is likely to have significant implications for the future of free speech protection in the United States.