Supreme Court’s January Docket Includes Key Free Speech Case

The U.S. Supreme Court will take on its first free speech case this month. The case, Free Speech Coalition v. Paxton, involves the constitutionality of a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of every user before permitting access.

Facts of the Case

H.B. 1181 regulates any “commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors.” Those regulated entities must “use reasonable age verification methods” to limit their material to adults and must “display notices on the landing page of the website and on all advertisements for that website in 14-point font or larger.”

Free Speech Coalition, Incorporated, an adult industry trade association; several domestic and foreign corporations that produce, sell, and host pornography; and one individual adult content creator brought a facial challenge against the enforcement of H.B. 1181. They contend that the law impermissibly encroaches on their First Amendment rights.

The district court found that the age-verification requirement is subject to and fails strict scrutiny. It relied on Ashcroft v. ACLU, 542 U.S. 656 (2004), in which the Supreme Court confirmed that States may rationally restrict minors’ access to sexual materials, but such restrictions must withstand strict scrutiny if they burden adults’ access to constitutionally protected speech.

Fifth Circuit’s Decision

The Fifth Circuit Court of Appeals upheld the law, finding that strict scrutiny did not apply. According to the majority, the proper standard was the rational-basis review applied by the Supreme Court in Ginsberg v. New York, 390 U.S. 629 (1968), because the Act is a “regulation[] of the distribution to minors of materials obscene for minors.” The majority acknowledged that the Supreme Court in Ashcroft did not follow that approach, but it deemed Ashcroft’s absence of “discussion of rational-basis review under Ginsberg” a “startling omission[]” that could “only” be explained by the failure of the petitioner in that case to argue for application of rational-basis review rather than strict scrutiny.

Applying rational-basis review, the Fifth Circuit concluded that the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography. Therefore, the requirement does not violate the First Amendment.

Issues Before the Supreme Court

The Supreme Court granted certiorari on July 2, 2024. The justices have agreed to consider the following issue:

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.

Oral arguments are scheduled for January 15, 2005. A decision is expected by the end of the term in July.