On January 15 the Supreme Court heard oral arguments from the parties to and amici of the case Free Speech Coalition v. Paxton. The legal issue at hand is the validity of a preliminary injunction that the district court of the 5th Circuit granted to the Free Speech Coalition (FSC), the nonprofit non-partisan trade association for the adult industry (the Industry), blocking the implementation of Texas’s age verification law, HB 1181.
Like several other laws that have been passed in different states, HB 1181 sought to force would-be visitors to websites that host Industry content. Specifically, per the law, a site must verify the age of a visitor if at least 1/3 of that site’s hosted content qualifies as “harmful to minors,” in an attempt to protect children from the harmful effects of consuming pornographic material. However, it is possible that this broad and generic language will be applied to a significant amount of non-pornographic material as well, including R-rated movies. HB 1181 will harm the Industry and it will not protect children. For a more detailed description of how this will happen, refer to my essay on California’s version of an age verification bill, AB 3080.
A note on protecting children: neither party in the case objected to the goal of protecting children—a rhetorical requirement in cases concerning the Industry—but it is clear that each party disagrees on some fundamental aspects of what that protection looks like.1 In practice, it is true that protecting children from the harmful effects of pornography is a worthwhile goal. Minors often lack the maturity and worldly experience to situate pornography in a social context. For example, this lack manifests in the form of an inability to read pornographic material as entertainment, and it gives a warped idea of what consensual sex between adults without an audience can be.
Each party to the suit has a genuine interest in preventing children from consuming pornography, but the fundamental disagreement occurs with the question how? Here we must get into some of the more nitty-gritty procedural aspects of the issue. So: FSC sued Texas to prevent the implementation of HB 1181, claiming that it violated the First Amendment’s prohibition on the limiting of speech. Before the case to determine whether the defendants had in fact violated the First Amendment even began, FSC asked the court for a preliminary injunction (PI),2 which the court granted. In order to obtain a PI, a party must show among other things that it has a likelihood of success at trial. Essentially, the adjudication of a PI creates a mini-trial where the judge indicates towards whose side they are leaning. Winning the request for a PI was a significant sign that FSC would win on the merits of its case. Texas appealed the court’s decision, saying the court applied the wrong standard of judicial review, which led to the legally incorrect outcome. The district court applied the “strict scrutiny” level of judicial review—the strictest level of review that a law must overcome in order to be deemed “constitutional.” Strict scrutiny requires a law to be narrowly-tailored to a stated, compelling government interest, and it must be the least restrictive means of achieving that interest. When it comes to content-based restrictions of speech, strict scrutiny is the appropriate and traditional level of judicial review. The 5th Circuit agreed with Texas that the circuit court used the wrong standard of judicial review and that the court should have used the “rational basis” standard of review, which is a significantly easier hurdle for a law to overcome. The rational basis standard requires a court to determine whether a statute furthers a legitimate government interest and whether there is a rational connection between the law and that interest, regardless of whether there is documentary evidence of legislators acknowledging that connection. The 5th Circuit ruled that HB 1181 survived that level of scrutiny and vacated the district court’s ruling. At the Supreme Court, the lawyers for all parties agreed that the rational basis standard of review was inapposite. However, the lawyers for Texas urged the Court to apply “intermediate scrutiny,” which is easier for a law to overcome than strict scrutiny but still more challenging to overcome than rational basis. Intermediate scrutiny requires a law to further an important government interest (rather than a compelling one), and it must do so by means that are substantially related (rather than narrowly tailored) to that interest. Texas’s argument was that the district court incorrectly called HB 1181 a content-based restriction on speech and the court should not have therefore applied strict scrutiny. Instead, argued Texas, HB 1181 is a content-neutral restriction on speech and thus the court should have applied intermediate scrutiny, which is the appropriate and traditional level of judicial review for content-neutral restrictions. Finally, Texas argued that if the court had used intermediate scrutiny it would not have granted the PI and therefore the court would not have signaled that FSC was likely to succeed at trial.
It is admittedly confusing, but it is also very important to apply the correct standard to government restrictions on speech. Pornography is typically the canary in the coal mine when it comes to censorship. Governments that censor pornography go on to censor non-pornographic content, such as books in public school libraries that contain homosexual themes, as has happened in Mahmoud v. Taylor, which the Justices agreed to hear earlier this year. But censorship should not have to spread beyond the Industry in order to matter. Porn performers and creators are themselves worthy of care and protection. It should not matter that others will be targeted later if we understand the current targets to be deserving of all of the rights guaranteed by the Constitution. That said, I’d also like to talk about the effect this will have on trans people and LGBTQ rights. This is not to debate the potential effects on trans people if the President decides to give a cookie to a mouse. This is describing the demand for a glass of milk that the mouse has already made. Predicting what the fallout to a bad law will be is important in the sense that we need to be able to appropriately respond to government overreach. This is not that. Age verification laws have already had negative effects on members of the LGBTQ community. HB 1181 is only one of many similar state bills that have been signed into law. These bills create a category of person and then associate a standard of behavior toward that person. Legislators will typically choose easy targets, which is why they often go after sex workers first. But then, once everyone agrees with the dual propositions, that “sex workers are obscene” and “we must protect children from obscenity,” legislators simply add more types of people to that category. This is much more effective than going straight at less politically convenient targets. For these reasons, we must continue to reject age verification laws as significant technological government overreach.
The audio and transcript of the oral arguments can be found here.
1) For the sake of brevity, I ask the reader to indulge me in some admittedly broad and generalizing statements.
2) A PI is when a court prevents or forces one party to a suit to behave in a certain way in order to prevent harm. For example, if water rights activists sue Nestlé to stop pumping water out of their community, even if a judge rules that Nestlé’s pumping was illegal they could have been pumping during the whole case. A judge in that context would try to figure out whether the water rights activists were likely to win on the merits of their case, and if the judge decided that was the case they would prevent Nestlé from continuing to harm the community during the trial.