On Wednesday, the Supreme Court heard the first major First Amendment case involving pornography — or, for that matter, sexual speech of any kind — in more than two decades. It’s also the first such case since Republicans gained a 6-3 supermajority on the Supreme Court. And it’s a case that potentially allows the justices to both limit adults’ access to pornography and walk back longstanding free speech protections for sexual content.
Wednesday’s oral argument went disastrously for the porn industry. Current protections for online sexual content don’t seem like they will be completely destroyed, but all six of the Court’s Republicans plus Democratic Justice Elena Kagan appear likely to weaken those First Amendment protections (although it remains to be seen just how far they will go in doing so).
The case, known as Free Speech Coalition v. Paxton, involves a Texas law that requires many websites that publish a significant amount of “sexual material harmful to minors” to verify the age of its users before those users can access that material. The law is extraordinarily similar to a federal age-gating requirement that the Supreme Court struck down in Ashcroft v. ACLU (2004).
Ashcroft applied the most skeptical test the Supreme Court applies in constitutional cases, known as “strict scrutiny” to the federal law. Under strict scrutiny, a law must be “narrowly tailored” to advance a “compelling” goal in order to survive. The overwhelming majority of laws subject to this test fail.
Specifically, Ashcroft ruled that the federal age-gating law did not survive this test because, instead of requiring every pornographic website to check the age of every user, the government could have promoted “blocking and filtering software” that allows parents and teachers to prevent a particular computer from loading these websites.
Most of today’s justices, however, appeared to believe that Ashcroft is obsolete. As Justice Amy Coney Barrett noted, Ashcroft was decided before the invention of the iPhone, and before the proliferation of any number of internet-connected devices that children could use to access pornography. At one point, she spoke about the trouble she’s personally experienced as a parent trying to block certain content on all of these various devices.
Or, as Justice Samuel Alito put it, there is a “huge volume of evidence that filtering doesn’t work,” in part because children are often far more tech-savvy than their parents.
But, while Ashcroft had few fans at Wednesday’s argument, it’s unclear how, exactly, the Court will roll back protections for sexual speech. Nor is it clear whether the new legal standard will prevent adults from viewing sexual content that the Court has consistently said they have a First Amendment right to see.
Another question is, if the Court permits age-gating, what sort of content will the Court allow the government to place a gate around? Could the state of Florida forbid children from reading a transgender author’s memoir of their transition? Or could it similarly prevent gay teenagers from accessing online forums where queer people discuss their sexuality? What if a 16-year-old boy, who is thinking of having sex for the first time, wants to watch an instructional video showing someone correctly putting on a condom?
These questions, however, will probably have to wait for future litigation. For the moment, the only thing that appears reasonably clear is that the Court is likely to reduce the level of First Amendment protection afforded to online pornography — but it is completely unclear just how much they will reduce it.
Most of the justices started from the assumption that the government must have the power to restrict children’s access to porn
Several justices were quite explicit that they believed that, whatever rule is governing online pornography, it must be flexible enough to allow some laws which seek to bar children from watching porn. As Kagan put it, “it’s got to be the case that states can do some regulation in this area.”
Similarly, Chief Justice John Roberts seemed concerned that the more speech-protective regime that has been in place for decades is not compatible with the modern internet. “Technology access to pornography has exploded,” Roberts told Derek Shaffer, a lawyer who represents much of the porn industry. Roberts also expressed concerns that the nature of this content has changed since the era of relatively tasteful nude photographs in Playboy magazine.
And so 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.
Alito, a Republican, offered the most extreme idea, proposing that the lowest level of constitutional scrutiny (known as “rational basis”) should apply to laws like Texas. If Alito’s view prevails, that would be a catastrophe for free speech, as virtually all laws survive this very permissive test.
Most of the justices, however, seemed to recognize that Alito’s proposal goes too far, and that it would do too much to prevent adults from accessing sexual content that they have a constitutional right to see. As Democratic Justice Ketanji Brown Jackson noted at one point, under Alito’s proposed test, the government could require any adult who wants to look at online pornography to first submit a copy of their passport, their driver’s license, and a signed affidavit from their parents.
Likewise, Barrett said at one point that she wants to “take rational basis off the table.” She did, however, suggest that the Court could apply a test known as “intermediate scrutiny” to laws targeting minors’ access to sexual speech online.
This test, which asks whether a law serves “important government objectives” and whether it is “substantially related to achievement of those objectives,” is weaker than strict scrutiny, but it is still quite robust. Laws that discriminate on the basis of gender, for example, are typically subject to intermediate scrutiny.
So, while Barrett’s approach would weaken First Amendment protections for sexual speech, it would still call for robust judicial review of any law targeting that speech. It is unlikely, for example, that intermediate scrutiny would allow a state to bar queer teens from chatting on LGBTQ forums that don’t feature pornography.
A third approach, floated by Justice Brett Kavanaugh, would ask whether laws imposing age-gating requirements on websites are “overly burdensome” or “too burdensome” of adults’ rights to see sexual content. This would be an entirely new legal standard, so it’s difficult to predict how it would apply to other contexts.
Though there seemed to be little agreement on exact approach, it was fairly clear by the end of the argument that it is likely that at least five — and possibly as many as seven — justices will agree that strict scrutiny should no longer apply to laws requiring age-gating on pornographic websites. But it also appeared that most justices wanted to avoid the free-for-all that would result under Alito’s proposed rule.
The Court seems unsure what should happen after they rule on this case
Another sign that the justices appear likely to land somewhere in between the very speech-protective rule that is currently the law, and the extremely permissive rule floated by Alito, is that multiple justices asked whether the Texas law should be temporarily blocked if they send this case back down to the lower courts to apply a new legal standard.
The trial court in this case blocked the Texas law, applying the rule established by Ashcroft, but an appeals court stayed that decision blocking the law. Ordinarily, if the Supreme Court rules that an appeals court erred, it vacates that court’s orders — which would mean that the trial court’s decision blocking the law would come back into effect at least until the appeals court has a chance to apply the new legal rule.
In any event, this matters because the only reason the justices need to worry about what happens to Texas’s law after they rule is if they still plan to leave in place some protections for online pornography.
Another question, which received some but not much attention during Wednesday’s argument, is whether modern age-gating technology actually works as well as Texas claims that it does. It is far from clear that an app currently exists that can verify whether someone is an adult without creating serious privacy concerns — such as a risk that hackers could uncover everyone who looked at a particular pornographic website.
If the Supreme Court does announce new, weaker but still robust protections for sexual content online, then many of these questions will have to be resolved by the lower courts — and they may make their way up to the Supreme Court again. For the moment, the one thing that does appear certain is that the First Amendment is about to become weaker, at least with respect to online pornography.
