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Last week, the Supreme Court agreed to review the Fifth Circuit’s decision in , which upheld Texas’ adult content age-verification law. As FIREexplained in its amicus brief urging the Court to review and reverse the ruling, this is an important case for online speech. Why? Because the Fifth Circuit’s decision attempts to unilaterally overturn a quarter-century of Supreme Court precedent. 

These kinds of age-verification laws are just the latest in a long line of attempts to burden adult access to constitutionally protected speech. And unfortunately, Texas has lots of company in trying once again to flout the First Amendment. To understand the stakes, a closer look is warranted.

Let’s talk about sexual content.     

Defending the First Amendment often entails fighting laws supposedly designed to protect children from allegedly harmful content, be it jazz, comic books, heavy metal, or video games — and sexual content. Why? Because legislatures know that “protecting children” is a compelling justification for laws that govern issues of morality. The problem with these kinds of laws is that they often just so happen to burden adults’ access to constitutionally protected speech.

In Butler v. Michigan (1957), the Supreme Court held a state law that prohibited any sale of printed material “tending to the corruption of the morals of youth” violated the First Amendment because it infringed the free speech rights of adults. In United States v. Playboy (2000), the Court invalidated a federal law that prohibited cable channels from airing “sexually explicit” programming between 6 a.m. and 10 p.m. And, as we’ll get to shortly, the Court applied similar reasoning at the advent of the public internet and efforts to regulate it.

The problem with age verification laws is they place a burden on every consumer — adults included — to access constitutionally protected speech.

Recently, states have again turned to age-verification laws as their vehicle of choice for restricting adult content. Since 2023,  have passed laws requiring people to verify their age to access online pornography sites: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and Virginia. 

The problem with age-verification laws is they place a burden on every consumer — adults included — to access constitutionally protected speech. And verifying your age online is a different animal from simply flashing a driver’s license to someone behind a counter. It usually means handing over your government ID for a platform or verification service to copy, entering the last four digits of your Social Security number, or even submitting to biometric facial scanning. 

The Supreme Court has rightly required courts to be very exacting in reviewing laws that infringe adult access to constitutionally protected speech by targeting specific content.

The Fifth Circuit applied an overly permissive standard of review. 

Texas’ age-verification  requires websites that publish content of which more than one-third is “sexual material harmful to minors” to ensure each user is an adult before letting them access the content. If a website fails to do so, the minor’s parents can sue for damages. 

Requiring adults to verify their age before accessing lawful pornography encumbers their ability to view constitutionally protected speech based on its content. And anytime a law burdens adult access to lawful speech, a reviewing court must apply “strict scrutiny.” That means a statute is only constitutional if the government’s interest is “compelling,” and if the law is the “least restrictive means” for advancing the government’s interest. Notably, two Supreme Court First Amendment cases from the late 1990s and early 2000s made clear that application of strict scrutiny to such age-verification laws is required. And in both cases, the laws could not withstand this exacting constitutional review. 

In 1997, the Supreme Court held in Reno v. ACLU that provisions of the Communications Decency Act prohibiting transmission of “indecent” or “offensive” material to minors — including an age-verification requirement — violated the First Amendment. Applying strict scrutiny, the Court held the CDA unconstitutional because it was not “narrowly tailored.” The Court specifically noted that credit card and password verification systems were burdensome on both users and websites, and they didn’t even ensure that the user was in fact an adult. Moreover, the government failed to explore feasible alternatives like a system “that facilitates parental control of material coming into their homes.” 

Congress tried to repair the problem by enacting the Child Online Protection Act, which prohibited the online posting for “commercial purposes” of content “harmful to minors.” Half a decade later, in Ashcroft v. ACLU, the Supreme Court again applied strict scrutiny and held COPA violated the First Amendment because it was more restrictive than necessary to achieve the government’s objective of protecting minors from sexual content. 

FIRE — along with the Electronic Frontier Foundation, the ACLU, TechFreedom, the Center for Democracy & Technology, and the Media Coalition Foundation — explained this framework in an amicus brief filed in the Fifth Circuit. But despite the Supreme Court’s obvious (and binding) roadmap, the appellate court panel in Paxton declined to apply strict scrutiny to Texas’ law. It instead applied the far more deferential rational basis test, under which a law survives so long as its restrictions reasonably relate to a legitimate governmental interest. 

Amici Brief in Support of Plaintiffs-Appellees and Affirmance – Free Speech Coalition v. Colmenero

Resource

FIREfiled an amicus brief with the Fifth Circuit asking it to affirm the injunction and protect the First Amendment rights of Texans while online.

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The two-judge majority held Reno was inapplicable because the Texas law supposedly differs sufficiently from the CDA. But none of the asserted differences are relevant to whether Texas’ age-verification process is the least restrictive means for protecting children from allegedly harmful content. Echoing a common refrain from state legislators, the panel wrote that the Reno decision was “fundamentally bound up in the rudimentary ‘existing’ technology of twenty-seven years ago, but technology has dramatically developed.” That ignores the district court’s finding that the Texas law is “unreasonably intrusive in its use of age verification” because, according to Texas’ own expert, there were “several ways that age-verification can be less restrictive and costly” than the Texas law requires. 

The majority admitted that the Ashcroft case was the “best ammunition” against Texas’ law because the Texas law is “very similar” to COPA. So how did it avoid Ashcroft’s mandate that strict scrutiny applies? The majority marshaled a bizarre theory that because the Ashcroft Court applied strict scrutiny without discussing more deferential tiers of scrutiny (like the rational basis test), the Court never actually ruled that strict scrutiny was the appropriate standard of review, and instead relied on the parties’ incorrect assumption that it was. Never mind that Justice Scalia dissented in Ashcroft because, in his words, the Court erred “in subjecting COPA to strict scrutiny.” Especially in light of that fact, if the majority in Ashcroft thought it plausible that a lower tier of scrutiny might be more appropriate, they would have explained as much in the opinion. But the Fifth Circuit panel took the absence of such explanation as evidence that it did! Occam’s razor is our friend here: The Ashcroft majority applied strict scrutiny because it was the appropriate standard of review.

One judge on the Fifth Circuit panel dissented, stating over a dozen times that strict scrutiny was the proper standard of review. He explained that the majority’s analysis of Ashcroft “ignores that the Supreme Court itself previously found that strict scrutiny applied.” In his view, the Ashcroft Court “simply treated it as a self-evident proposition that strict scrutiny applied” because it was “clearly established” by the Court’s precedents. Moreover, the dissent challenged the majority’s attempt to distinguish Reno by pointing out that the Texas law is “strikingly similar to the CDA [the law at issue in Reno] and, in some ways, goes even further.” 

When it reviews the Fifth Circuit’s decision in Paxton, the Supreme Court will have no choice but to pay close attention to the respectfully fiery dissent. Notably, that dissent echoes the rulings of the federal courts that have considered similar laws both before and after the Fifth Circuit passed on Texas’ version.

Every other federal court to review similar laws have ruled the other way.

Over the past year or so, several federal district courts have reviewed similar age-verification laws. The Fifth Circuit is the only court to uphold the law in question, and it’s the only court to apply the rational basis standard instead of strict scrutiny. Meanwhile, courts in Arkansas, Indiana, Mississippi, and Ohio have enjoined age-verification laws supposedly designed to shield minors from sexual content online. 

Most recently, in , an Indiana district court took aim at the Fifth Circuit’s Paxton decision, noting that “despite no intervening change in Supreme Court precedent,” the Fifth Circuit held that the Reno and Ashcroft precedents “were not binding upon it.” And it explained that strict scrutiny must apply to the age-verification law because, for example, Indiana’s law (like the Texas law) applies to websites that have 33.4% or more sexual content. In other words, age verification would apply even to “adults attempting to access material perfectly appropriate for minors” and “even when the majority of a website contains entirely acceptable, and constitutionally protected, material.”

The hope, of course, is that the Court — unlike the Fifth Circuit — follows its internet speech precedents safeguarding adult free speech rights.

District courts that analyzed similar laws before the Fifth Circuit’s Paxton decision similarly held they likely fail strict scrutiny. In , an Arkansas district court held that state’s age-verification law failed even intermediate scrutiny and enjoined it as “likely to unduly burden adult and minor access to constitutionally protected speech.” In , an Ohio district court enjoined the state’s law that required online platforms to obtain parental consent or else deny access to anyone under the age of 16 because it violated Ohioan minors’ rights. And in , a Mississippi district court applied strict scrutiny to hold the age-verification law violated the First Amendment as “either overinclusive or underinclusive, or both, for achieving the asserted governmental interest” and that “a substantial number, if not all” of the law’s “applications are unconstitutional judged in relation to its legitimate sweep.”

Rulings on similar laws from other courts are surely coming. Assuming those courts follow Supreme Court precedent, they, too, will likely diverge from the Fifth Circuit’s Paxton ruling. 

With the Supreme Court agreeing to review Free Speech Coalition v. Paxton, the next term is already shaping up to be another consequential one for First Amendment law and online speech. The hope, of course, is that the Court — unlike the Fifth Circuit — follows its internet speech precedents safeguarding adult free speech rights.