If you’ve spent time studying First Amendment law, it becomes quite impossible not to experience a sense of déjà vu while carefully reading through the detailed briefs in the case of Free Speech Coalition v. Paxton, a significant Supreme Court case that the justices are scheduled to hear on January 15 regarding online pornography.

This is particularly notable because the Texas law that is central to the Free Speech Coalition case is, in all relevant respects, virtually identical to a federal law that the Supreme Court previously blocked in the landmark decision of Ashcroft v. ACLU (2004).

That federal law was specifically designed to prevent minors from being able to view pornography, and the Texas law seeks to achieve a similar goal, although it employs a somewhat different mechanism to do so. If the justices decide to take seriously some of the more aggressive arguments that Texas presents to defend its law, there may be significant implications, including the potential to eliminate longstanding free speech protections that have historically been established for sexual content.

SCOTUS, Explained

Even the United States Court of Appeals for the Fifth Circuit, which upheld the Texas law, conceded that the two laws in question are “very similar” — though the Fifth Circuit did, in an unusual act of defiance by a lower court, conclude that it was not bound by the established Supreme Court precedent set forth in Ashcroft and was therefore free to uphold the Texas law regardless.

It’s tempting, in other words, to dismiss Free Speech Coalition as an insignificant case that should promptly end in the justices rebuking their insubordinate colleagues on the Fifth Circuit. That particular court has a well-documented history of handing down poorly reasoned opinions that support results aligned with right-wing ideologies.

Moreover, the Supreme Court, even with its current 6-3 Republican supermajority, frequently reverses the most disruptive decisions put forth by the Fifth Circuit. And yet, despite the Fifth Circuit’s weak reasoning and a poorly argued brief by the state of Texas defending its controversial law, the state does make one plausible argument, suggesting that the Court should consider tweaking First Amendment law to make it less accommodating to pornography producers in this particular context.

What is Free Speech Coalition about?

The Free Speech Coalition challenges a 2023 Texas law requiring certain pornographic websites to verify users' ages. Plaintiffs, including a trade association and industry members, argue the law poses significant privacy and security risks for adult users.

Many adults are hesitant to share their driver's license with a porn site due to concerns about hacking or legal requests that could expose their private sexual interests.

In Ashcroft, the Supreme Court struck down a similar federal law that made it illegal for businesses to post harmful content for minors but allowed them to avoid punishment if they verified users' ages. While there are differences between the Ashcroft law and the Texas law in Free Speech Coalition—mainly that the Texas law only carries civil penalties—the Fifth Circuit admitted these differences don't affect the First Amendment analysis of Free Speech Coalition.

In Ashcroft, the justices determined that the government should have employed “less restrictive” methods, such as promoting “blocking and filtering software” to keep children away from porn sites. This case is part of First Amendment rulings that affirm the government cannot prevent adults from accessing sexual content, even to protect children.

Laws restricting adult access to sexual material must be “narrowly tailored” with a “compelling” goal, meaning the government must use the least restrictive means to limit speech. Laws impacting constitutional rights, like free speech, are often subject to strict scrutiny. Such laws may fail this test if they are overly broad or underinclusive, imposing significant burdens on rights while achieving minimal societal benefits.

Texas's defense of its 2023 law argues that previous court cases should be overturned. It claims that strict scrutiny shouldn't apply to laws aimed at stopping children from seeing pornography, even if they limit adults' First Amendment rights. If the justices agree, the government could gain more authority to restrict adult access to sexual content.

Texas asserts that increased oversight is necessary due to the wide availability of pornography, providing numerous graphic examples. The state's lawyers hope that by presenting vivid descriptions, they can persuade the justices to support their position.

However, Texas does offer a solid point for upholding some laws against young people's pornography access. They note that the Ashcroft decision is 20 years old and argue that advancements in technology now allow for verifying users' ages online without compromising privacy or other personal information.

If Texas is correct about the existence and usability of age-gating technology, laws requiring porn sites to block underage users could be constitutional. This technology could more effectively prevent children from accessing online porn than the content-filtering methods approved by Ashcroft while imposing minimal burden on adults. Thus, a law mandating age-gating might pass strict scrutiny today, unlike in 2004.

A ruling that requires the use of secure age-gating software would align with Ashcroft and wouldn’t overturn previous decisions allowing adults to view sexual content. Ashcroft did not declare age-gating software unconstitutional but assessed the technology available in 2004.

What does current law say about free speech and online porn?

For much of American history, courts ignored the First Amendment's protection of free speech.

The federal Comstock Act made it illegal to send obscene materials by mail, and many states had similar laws.

This led to arrests of artists and sellers for producing or sharing sexual content deemed inappropriate by authorities.

By the mid-20th century, the Supreme Court began to take the First Amendment seriously, gradually narrowing the definition of "obscenity" until few items were considered obscene. Today, while the First Amendment allows adults to access all types of sexual material, governments can still restrict young people's access to some content.

Texas and the Fifth Circuit often reference Ginsberg v. New York, a 1968 case allowing the government to limit minors' access to some sexual content. However, the details of that case differ significantly from Free Speech Coalition and Ashcroft. Ginsberg concerned a lunch counter operator who was prosecuted for selling two "girlie" magazines to a 16-year-old boy. This case did not involve a law stopping adults from accessing sexual material. In New York's law, adults could simply show ID to buy similar magazines without much concern about privacy.

The Ashcroft line of cases, by contrast, includes a series of important legal rulings that all involve technologies capable of widely broadcasting sexual material in ways that complicate efforts to verify whether each individual consumer of that material is indeed an adult. One notable case from 1989, for example, resulted in the Supreme Court striking down a ban on "dial-a-porn" services. In these services, callers could simply dial a specific phone number and pay a fee to hear a pre-recorded, sexually explicit message. These impactful decisions, moreover, established that any laws which restrict adults' access to sexual content generally must survive a rigorous level of legal scrutiny known as strict scrutiny.

Remarkably, these rulings were made several years before Ashcroft subsequently applied this stringent rule within the context of online platforms and the internet. In the case of United States v. Playboy Entertainment Group (2000), for instance, the Supreme Court struck down a federal law that effectively prohibited cable television stations from broadcasting pornography except during the hours of 10 pm to 6 am.

Playboy clearly stated that laws blocking adults from viewing sexual material they have a right to see must be rigorously examined, even if aimed at protecting children from pornography. The Court noted that protecting children does not justify a complete ban if there are less restrictive options available. The Ashcroft case was not groundbreaking; it simply applied established rules from cases like Playboy to online pornography. However, the Fifth Circuit decided to ignore these precedents and criticized the George W. Bush-era Justice Department as incompetent.

Texas’s law will not effectively prevent anyone from viewing online pornography; rather, it will simply redirect their porn consumption from well-known sites like Pornhub to platforms like Reddit.

The Fifth Circuit argued that Ashcroft's opinion had significant gaps. While it concluded that the federal law in question wouldn't pass strict scrutiny, it did not explain why such scrutiny should be applied to laws against online pornography. They claimed the Justice Department attorneys did not argue against applying strict scrutiny, which led them to believe Ashcroft did not set a legal requirement for courts to apply strict scrutiny in similar situations.

Lower courts must adhere to Supreme Court decisions, regardless of their personal views. Judges cannot ignore Supreme Court rulings based on perceived shortcomings in the lawyers' arguments. In the case of Ashcroft, the Justice Department did not contest the application of strict scrutiny, which had already been established in the 2000 Playboy ruling.

Although the DOJ chose not to challenge this precedent during oral arguments, Justice Antonin Scalia presented a dissent in Ashcroft, highlighting the disagreement among justices regarding the application of strict scrutiny. Ultimately, the majority was not convinced by Scalia's position.

So how should the Supreme Court handle Free Speech Coalition?

The First Amendment issues presented by the Free Speech Coalition are indeed serious and warrant careful consideration. The complex question of whether technology has advanced sufficiently to allow for the protection of minors from online pornography while simultaneously ensuring that adults can access any material to which they have a legitimate right is particularly challenging. This issue deserves a thorough examination and serious deliberation by the federal courts, as the implications are vast and could significantly impact First Amendment rights and protections.

If Texas is right that software can confirm adult users of online porn without invading privacy, the Supreme Court should support a well-designed law requiring porn sites to use these services. However, it should reject Texas's law because it does not meet strict scrutiny standards. Strict scrutiny demands that laws must be specifically designed to serve an important purpose, and Texas’s law fails this test by only targeting a limited number of websites. It only applies to sites that intentionally share harmful sexual content for minors, meaning it does not effectively address the broader issue. And only if the site has more than 30% of content which is harmful to kids.

For starters, it’s unclear how, exactly, the law measures how much of a website is devoted to “sexual material.” Is this determined by looking at how many bytes of data are devoted to pornography? How many minutes of video? How many inches of screen space?

Strict scrutiny's narrow tailoring aim is to prevent laws that restrict constitutional rights without effectively meeting government goals. The Texas law's one-third requirement does not truly limit minors' access to pornography, failing to meet the state's objective.

As the Free Speech Coalition plaintiffs elucidate in their substantial brief, the trial court that carefully evaluated this case “found that social media platforms like Instagram and Facebook contain ‘material which is sexually explicit for minors,’ and that sites like Reddit ‘maintain entire communities and forums’ devoted ‘to posting online pornography.’”

Therefore, Texas’s law will not effectively prevent anyone from viewing online pornography; rather, it will simply redirect their porn consumption from well-known sites like Pornhub to platforms like Reddit.

Consequently, even assuming that age verification applications function as Texas asserts they do, this specific law clearly violates the First Amendment and should be invalidated for its failure to meet the rigorous standards of strict scrutiny.

Should the Court choose to pursue this particular course of action, which is the only option that aligns with established law, it could further clarify that a meticulously drafted law might endure strict scrutiny — again, assuming that it is genuinely feasible to create age gates around online pornography without jeopardizing the privacy of adults.

In any case, there exists no necessity to overrule landmark decisions such as Ashcroft, nor to feign that those important decisions can simply be disregarded as the Fifth Circuit did, in order to uphold age-restrictive laws.