Free Speech Coalition v. Paxton: The Complicated Role of Technology in the Law
On June 12, 2023, the Texas legislature passed H.B. 1181, a law that would require any website whose content contains more than one-third sexual material harmful to minors to incorporate age verification methods. Before taking effect, plaintiffs sued, claiming that H.B. 1181 violated their First Amendment right to free speech. The district court ruled in favor of the plaintiffs, ruling that the age-verification requirement failed strict scrutiny, and launched an injunction. On appeal, the Fifth Circuit Court of Appeals ruled in favor of Texas, ruling that the age verification requirement only called for a rational basis review, and they vacated the district court’s injunction. The case was then appealed to the Supreme Court, which granted certiorari on July 2, 2024. The question before the court is whether H.B. 1181’s age verification requirement is subject to a rational basis review or strict scrutiny.
Background:
On June 12, 2023, the Texas legislature passed H.B. 1181, a law that would require any website whose content contains more than one-third sexual material harmful to minors to incorporate age verification methods. Before taking effect, plaintiffs sued, claiming that H.B. 1181 violated their First Amendment right to free speech. The district court ruled in favor of the plaintiffs, ruling that the age-verification requirement failed strict scrutiny, and launched an injunction. On appeal, the Fifth Circuit Court of Appeals ruled in favor of Texas, ruling that the age verification requirement only called for a rational basis review, and they vacated the district court’s injunction. The case was then appealed to the Supreme Court, which granted certiorari on July 2, 2024. The question before the court is whether H.B. 1181’s age verification requirement is subject to a rational basis review or strict scrutiny.
Technology and the Law:
What struck me most about the oral arguments was the underlying discussion about the role technology plays in the case. From discussions on age verification methods, online privacy, content filtering, and iPhones, this case felt representative of how technology and law are running at two completely different paces.
This discussion began when Free Speech Coalition’s attorney, Derek L. Shaffer, argued that age verification requirements were unnecessarily invasive of users’ privacy and that alternative, less restrictive means of regulating access to porn, such as content filtering, are far more tailored solutions that would satisfy strict scrutiny. However, this argument by Shaffer faced immediate pushback from Justice Barrett, who expressed apprehension regarding the efficacy of content filtering as an alternative to age verification. Speaking from her own experience as a mother of teenagers, she suggested that filtering technologies might not be as effective in shielding minors from explicit material, thereby questioning their viability as a less restrictive means. Many other justices echoed Justice Barrett’s concerns about technology, acknowledging the rapid evolution of technology and its impact on minors' access to online content. Justice Thomas made a concerted effort to discuss Ashcroft v. ACLU (2004) (“Ashcroft”), a case that ruled the Child Online Protection Act’s restriction on access to pornography for minors failed to satisfy strict scrutiny because it was not narrowly tailored to only apply to minors; the majority, which included Justice Thomas, believed the act was too restrictive on adults as well. However, Thomas argues that the decision was made in “a world of dial-up Internet” access, implying that the advancement of technology since 2004 has made the precedent obsolete.
Based on these discussions around the advancement of technology, it would seem that a significant block of justices are sympathetic to the Texan government’s concerns that technology has outpaced the law established in Ashcroft. As a result, they may rule that H.B. 1181 is subject to rational basis review rather than strict scrutiny, with the argument that despite age verification methods not being the least restrictive means of regulating porn, such methods are necessary as the rapid development of technology has made content filtering methods obsolete.
However, other justices, like Justice Jackson, were more hesitant to fully embrace this argument. Jackson suggested that age verification methods would place an undue burden on adults who, unlike minors, are allowed to access pornographic material. It would seem that Justice Jackson is more supportive of the Ashcroft decision, and believes strict scrutiny would be more appropriate, as the government’s desire to prevent minors from accessing pornographic content should not, in her view, override an adult’s First Amendment right. Thus, under this pro–strict scrutiny argument, age verification methods would not be properly tailored to achieving the government’s goal of regulating access to porn for minors since it would place an excessive burden on adults to access the same material.
Predictions:
By the end of oral arguments, it seemed clear to me that a general momentum had gone in favor of supporting a rational basis review for H.B. 1181. With a majority of justices expressing doubts about the effectiveness of content filtering due to rapidly changing technology, it seems like at least six or seven justices are poised to rule that rational basis review is the proper standard of review in this case, with possibly dissents only from Justices Jackson and Sotomayor. In the end, I predict this case will be decided either 7–2 or 8–1 in favor of Paxton.