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 won a 6-3 supermajority on the Supreme Court. And it’s a case that potentially allows judges to both limit adults’ access to pornography and roll back longstanding free speech protections for sexual content.
Wednesday’s oral argument turned out disastrously for the porn industry. Current protections for sexual content online do not appear to be completely destroyed, but the Court’s six Republicans plus Democratic Justice Elena Kagan appear likely to weaken these First Amendment protections (although it remains to be seen how where they will go). doing so).
The case, known as Free Speech Coalition v. Paxtoninvolves a Texas law that requires many websites publishing a significant amount of “sexual material harmful to minors” to verify the age of their users before those users can access that material. The law is extraordinarily similar to a federal age restriction 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” of federal law. Under strict scrutiny, a law must be “narrowly tailored” to achieve a “compelling” objective in order to survive. The overwhelming majority of laws subjected to this test fail.
Specifically, Ashcroft ruled that the federal age restriction law did not stand up to this test because, instead of requiring every pornographic website to verify the age of each user, the government could have promoted “software Blocking and Filtering” which allows parents and teachers to prevent a particular computer from verifying the age of each user. to load these websites.
However, most judges today seemed to believe that Ashcroft is obsolete.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 a number of Internet-connected devices that children could use to access pornography. At one point, she talked about the problems she personally encountered as a parent trying to block certain content on all these different devices.
Or, as Justice Samuel Alito put it, there is “an enormous volume of evidence that filtering doesn’t work,” in part because children are often much more technologically savvy than their parents.
But, while Ashcroft had few fans during Wednesday’s argument, it’s unclear how the Court will strike down protections for sexual speech. It’s also unclear whether the new legal standard will prevent adults from viewing sexual content that the Court has consistently said they have a right to see under the First Amendment.
Another question is: If the Court allows the age limit, what kind of content will the Court allow the government to impose a barrier? Could the state of Florida ban children from reading a transgender author’s memoir about their transition? Or could it similarly prevent gay teenagers from accessing online forums where gay people discuss their sexuality? What if a 16-year-old boy, who is considering having sex for the first time, wants to watch an instructional video of someone putting on a condom correctly?
These questions, however, will likely have to await future litigation. At the moment, the only thing that seems reasonably clear is that the Court is likely to reduce the level of First Amendment protection afforded to online pornography – but it is entirely unclear how much it will reduce it.
Most judges have assumed that the government must have the power to restrict children’s access to pornography.
Several justices made it clear that whatever rule governs online pornography, it must be flexible enough to allow certain laws to prohibit children from viewing pornography. As Kagan said, “states must be able to regulate this area.”
Similarly, Chief Justice John Roberts seemed concerned that the more protective speech regime in place for decades is not compatible with the modern Internet. “Technological 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 tasteful nude photographs in Playboy magazine.
And so the pleading in Free Speech Coalition looked more like a meeting of lawmakers trying to decide the content of an anti-pornography bill, rather than a meeting of justices trying to decide how to apply the Supreme Court’s First Amendment precedents to a particular case.
Alito, a Republican, proposed the most extreme idea, proposing that the lowest level of constitutional review (called “rational basis”) apply to laws like Texas’. If Alito’s view prevailed, it would be a catastrophe for free speech, because virtually all laws survive this very permissive test.
Most of the justices, however, appear to agree 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 pointed out, under Alito’s proposed test, the government could require any adult wishing to view pornography online to first submit a copy of their passport, driver’s license and a affidavit signed by his parents.
Similarly, Barrett said at one point that she wanted to “take rational basis off the table.” She suggested, however, that the Court could apply a test known as “intermediate scrutiny” to laws targeting minors’ access to online sexual discourse.
This test, which asks whether a law furthers “important objectives of the government” and whether it is “substantially related to the achievement of those objectives,” is weaker than strict scrutiny, but it is still quite robust. Discriminatory laws based on sex, for example, are generally subject to intermediate review.
Thus, although Barrett’s approach would weaken the First Amendment’s protections regarding sexual speech, it would nonetheless require rigorous judicial review of any laws targeting such speech. It is unlikely, for example, that intermediate oversight would allow a state to ban queer teens from chatting on LGBTQ forums that do not feature pornography.
A third approach, proposed by Justice Brett Kavanaugh, would be to ask whether laws imposing age-restriction requirements on websites are “too burdensome” or “too burdensome” on 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 exact approach, it was quite clear by the end of the argument that it is likely that at least five – and perhaps as many as seven – justices will be Agree that strict scrutiny should no longer apply to laws requiring age checks on porn sites. But it also appeared that most of the justices wanted to avoid the melee that would result from Alito’s proposed rule.
The Court seems unsure of what should happen after ruling on this case
Another sign that the justices seem likely to fall somewhere between the highly protective free speech rule that is currently the law and the extremely permissive rule launched by Alito is that several justices have asked whether the Texas law should be temporarily blocked if they send this. the case must be sent back to lower courts to apply a new legal standard.
In this case, the trial court blocked the Texas law, applying the rule established by Ashcroftbut an appeals court suspended this decision, thus blocking the application of the law. Usually, 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 enforcement of the law would come back into force at least until the court of appeal has the opportunity to apply the new legal rule. .
Regardless, this is important because the only reason the justices need to worry about what happens to the Texas law after they rule is if they still plan to leave in place certain protections for pornography in line.
Another question, which received some, but not much, attention during Wednesday’s discussion, is whether modern age-screening technology actually works as well as Texas claims. It is far from certain that there is currently an application capable of checking whether someone is an adult without creating serious privacy concerns, such as the risk that hackers could discover everyone who has visited a pornographic website particular.
If the Supreme Court announces new, weaker but still robust protections for online sexual content, then many of these questions will have to be resolved by lower courts – and they could return to the Supreme Court again. For now, the only thing that seems certain is that the First Amendment is about to weaken, at least when it comes to online pornography.
