On Wednesday, the Supreme Court heard the first major First Amendment case involving pornography — or, for that matter, any kind of sexual speech — in more than two decades. It is the first such case since Republicans held a 6-3 supermajority on the Supreme Court. And it’s a case that allowed judges to both limit adults’ access to pornography and roll back long-standing free speech protections for sexual content.
Wednesday’s oral argument turned disastrous for the porn industry. Current protections for online sexual content don’t appear to be completely gutted, but the court’s six Republicans plus Democratic Justice Elena Kagan appear likely to weaken those First Amendment protections (though how far they’ll go in doing so remains to be seen).
known as litigation Free Speech Coalition v. PaxtonA Texas law involves requiring many websites that publish significant amounts of “sexual material harmful to minors” to verify the age of users before users can access that content. The law is remarkably similar to a federal age-setting requirement that the Supreme Court struck down. Ashcroft v. ACLU (2004).
Ashcroft The most skeptical test applied by the Supreme Court in constitutional cases is known as “strict scrutiny” in federal law. Under strict scrutiny, a statute must be “narrowly useful” to advance a “necessary” goal of survival. The overwhelming majority of laws subject to this test fail.
in particular, Ashcroft ruled that federal age-setting laws did not survive this test because, rather than requiring every pornographic website to check the age of every user, the government could promote “blocking and filtering software” that would allow parents and teachers to block a particular computer. From loading this website.
Most of today’s judges, however, appear to believe so Ashcroft As the late Justice Amy Coney Barrett noted, Ashcroft The decision was made 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, he talks about the problem he’s personally experienced as a parent trying to block certain content on all these different devices.
Or, as Justice Samuel Alito put it, “there’s an overwhelming amount of evidence that filtering doesn’t work,” partly because children are more tech-savvy than their parents.
But, when Ashcroft Wednesday’s argument had some fans, saying it was unclear how the court would roll back protections for sexual speech It’s also unclear whether the new legal standard will prevent adults from viewing sexual content that courts have consistently said they have a First Amendment right to view.
Another question is, if the court allows the age limit, what kind of content will the court allow the government to gate around? Can Florida state ban kids from reading transgender author’s memoir about their transition? Or could it similarly prevent gay teens from accessing online forums where queer people discuss their sexuality? What if a 16-year-old boy, who is thinking about having sex for the first time, wants to watch an instructional video showing someone putting on a condom correctly?
These questions, however, will probably have to await future litigation. For the moment, the only thing that seems reasonably clear is that the courts could reduce the level of First Amendment protection afforded to online pornography — but it’s not entirely clear how much they would reduce it.
Most of the justices started from the idea that the government should have the power to restrict children’s access to porn.
Several judges have been quite clear that they believe that, however online pornography is regulated, it must be flexible enough to allow some laws that seek to prevent children from viewing porn. As Kagan put it, “It should be the case that the states can exercise some control in this area.”
Similarly, Chief Justice John Roberts seemed concerned that the more speech-protective measures that have existed for decades are out of step with the modern Internet. “Access to technology in pornography has exploded,” Roberts told Derek Shaffer, a lawyer who represents much of the porn industry. Roberts also expressed concern that the nature of this content had changed since the era of relatively tasteful nude photographs in Playboy magazine.
And so in oral argument Free Speech Coalition Judges trying to decide how to apply First Amendment precedent to a particular case more closely resembles a meeting of lawmakers trying to decide what should be in an anti-porn bill.
Alito, a Republican, offered the most extreme idea, proposing that the lowest level of constitutional scrutiny (known as “rational basis”) should be applied to laws like those in Texas. If Alito’s view prevails, it will be a disaster for free speech, because virtually all laws survive this highly permissive test.
But most of the justices acknowledged that Alito’s proposal goes too far and would do too much to prevent adults from accessing sexual content that they have a constitutional right to view. As Democratic Justice Ketanji Brown Jackson noted at one point, under Alito’s proposed test, the government would require any adult who wants to view online pornography to first submit their passport, their driver’s license and a signed affidavit from their parents.
Similarly, Barrett said at one point that he wanted to “take reasonable grounds off the table.” He, however, suggested that courts may apply a test known as “”Intermediate verification“Towards Laws Targeting Minors’ Access to Sexual Speech Online”.
This test, which asks whether a law serves “important governmental purposes” and whether it is “substantially related to the achievement of those purposes,” is weaker than strict scrutiny, but it is still quite strong. Laws that discriminate on the basis of sex, for example, usually Subject to intermediate verification.
Thus, while Barrett’s approach would weaken First Amendment protections for sexual speech, it would still call for vigorous judicial review of any law targeting that speech. It is unlikely, for example, that intermediate scrutiny would allow a state to prevent chats in LGBTQ forums that do not contain pornography.
A third approach, introduced by Justice Brett Kavanaugh, would ask whether laws imposing age requirements on websites “overburden” or “overburden” adults’ rights to view sexual content. This would be an entirely new legal standard, so it is difficult to predict how it would apply in other contexts.
Although there appeared to be little agreement on the correct approach, it was fairly clear by the end of the arguments that it was likely that at least five – and perhaps as many as seven – justices would agree that the law requiring strict scrutiny should no longer apply. Age restriction on pornographic websites. But it also appeared that most of the justices wanted to avoid a free-for-all for the outcome under Alito’s proposed rule.
It seems uncertain what will happen after the court rules on the case
Another sign that the justices are likely to land somewhere between the speech-protecting rules that are currently the law, and the highly permissive rules introduced by Alito, is that several justices asked whether the Texas law should be temporarily blocked if they send it up. Cases returned to lower courts to apply a new legal standard.
The trial court blocked Texas law in this case, applying the rules established by AshcroftBut an appeals court blocked the law and stayed that decision. Generally, if the Supreme Court rules that an appellate court erred, it vacates that court’s order—meaning that the trial court’s decision to block the law will remain in effect at least until the appellate court has had a chance to apply new legal rules. .
Regardless, it’s important because the only reason to worry about what happens to Texas laws after the judges rule is if they still plan to leave some protections for online pornography.
Another question, which received some but not much attention during Wednesday’s arguments, is whether modern age-gating technology actually works as Texas claims it does. It’s not clear that an app currently exists that can verify whether someone is an adult without raising serious privacy concerns — such as a risk that hackers could expose everyone who visits a particular pornographic website.
If the Supreme Court enacts new, weaker but still stronger protections for sexual content online, many of these questions will have to be resolved by lower courts — and they could go back to the Supreme Court. For the moment, one thing that seems certain is that the First Amendment continues to weaken, at least when it comes to online pornography.
