Free Speech Coalition v. Paxton, 606 U. S. ____ (2025)
Texas bars and penalizes certain pornographic material on web sites that reach children:
6) "Sexual material harmful to minors" includes any material that:
(A) the average person applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to or pander to the prurient interest;
(B) in a manner patently offensive with respect to minors, exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated displays or depictions of:
(i) a person's pubic hair, anus, or genitals or the nipple of the female breast;
(ii) touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals; or
(iii) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
Tex. Civ. Prac. & Rem. Code Ann. §129B.002(a)
Noone seriously defends exposing children to such materials. So what is the issue that reached the Supreme Court? It is the longstanding debate over how hard a look a judge must take in reviewing such material. The argument centered over "strict scrutiny" - only a compelling interest, narrowly drawn will be upheld; or intermediate scrutiny - a relaxed standard that was applied to compel VMI to admit female cadets. Or rational basis review - the restriction on speech is judged only by whether it serves some rational purpose. The Court split over the choice.
The issue is how to enforce the ban on exposing children. Texas law provides, the majority writes:
H. B. 1181 requires a covered entity to “use reasonable age verification methods . . . to verify that an individual attempting to access the material is 18 years of age or older.” §129B.002(a). To verify age, a covered entity must require visitors to “comply with a commercial age verification system” that uses “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” §129B.003(b)(2).1 The entity may perform verification itself or through a third-party service. §129B.003(b)
The majority opinion, by Clarence Thomas, opted for internediate review. A measure restricting speech is permissible:
“if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189 (1997)
Applying that standard the majority says:
Age-verification laws like H. B. 1181 fall within States’ authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. Ginsberg, 390 U. S., at 641. That power necessarily includes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.
Clarence Thomas's path to the Supreme Court was clouded by his display of pornography to subordinate Anita Hill. But that was adult activity. The objective here is to protect minors.
So what is the rub? Why do the three Democratic appointees - Justices Kagan, Sotomayor, and Jackson object to Thomas and the majority's view. It certainly is not being soft on hard core or viiolent porn for kids. Elena Kagan writes:
No one doubts that the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm. Or to say the same thing in legal terms, no one doubts that States have a compelling interest in shielding children from speech of that kind. What is more, children have no constitutional right to view it.
But, she explains:
If H. B. 1181 is the best Texas can do—meaning, the means of achieving the State’s objective while restricting adults’ speech rights the least—then the statute should pass First Amendment review. But what if Texas could do better—what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech H. B. 1181 covers? That is the ultimate question on which the Court and I disagree.
The sticking point is, to the dissenters, that
H. B. 1181’s requirements interfere with—or, in First Amendment jargon, burden—the access adults have to protected speech: Some individuals will forgo that speech because of the need to identify themselves to a website (and maybe, from there, to the world) as a consumer of sexually explicit expression.
It is an odd point for a majoirty which is, typically, hostile to restrictions on individual liberty, as we saw in the pandemic vaccine cases.
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