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U.S. Supreme Court hears arguments in Free Speech Coalition v. Paxton pornography case

Jeff Kubina
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Flickr (CC BY-SA 2.0)

The Supreme Court heard arguments Wednesday in Free Speech Coalition v. Paxton, a case that revolves around a Texas law requiring websites to verify the ages of people seeking adult content, such as pornography. Free speech advocates and members of the adult entertainment industry sued to block the law and are being represented by the ACLU.

The case has broad implications for the First Amendment, as well as for similar laws in other states. Tara Grove, the Vinson & Elkins chair in law at UT Austin, said the issue at hand in this case is not whether the Texas law is constitutional.

“What’s before the Supreme Court is what standard of review to apply to a law like this. And that seems kind of technical, but it’s actually really important because sometimes the Supreme Court will say, especially when it comes to things that involve speech, we’re going to apply strict scrutiny,” Grove said. “And what that means is lower courts, when they’re examining laws that are said to interfere with speech, really, really closely scrutinize whatever the government is doing

“So the question before the court is, does that standard, that really strict scrutiny, apply? Or does a much, much lower standard called rational basis scrutiny apply?”

Grove said this is an important question because laws that are subjected to strict scrutiny are often usually struck down, and laws that are subjected to only rational basis scrutiny are almost always upheld.

“The standard of scrutiny is always really important. But it’s tricky here for the following reason: Adults are recognized to have a free speech interest in looking at things like pornography,” she said. “So if you’re an adult, you can look at this stuff. That is your First Amendment right, at least under the Supreme Court’s case law.

“But children do not have that First Amendment right at all. And so it’s a really tricky thing. What the Texas law here purports to do is say, we’re going to verify the age of the folks and kind of distinguish between the people who have no First Amendment rights and the people who do have First Amendment rights. But what the challengers are saying is by doing that, you’re interfering with the adults who do have the First Amendment rights.”

Grove said that even if the court does not rule on the constitutionality of the Texas law directly, the scrutiny standard it deems appropriate will still have an impact on whether this and similar laws continue to stand.

“This is tricky because everybody seems to agree that states should be able to do something to protect children and to try to safeguard children from being exposed to content that is just not good for kids. I think that that seems to be a universally agreed-upon principle,” she said. “And so I think the concern is that if the court says the higher standard applies, that makes it much more likely the Texas law will be struck down.

“Now, in the oral argument, several of the advocates said – and several justices kind of hinted – that this is the kind of law that might satisfy even a high standard of scrutiny, something that’s really strict because the government has such a strong interest in protecting children.”

The court’s ruling in this case will have implications for how lower courts treat this and similar laws when they are challenged going forward.

“Chances are, if the court decides that strict scrutiny applies or rational basis applies to this type of law, that’s going to be applied by lower courts to all of the other state statutes that do much the same thing,” Grove said. “There apparently are some differences among these laws. So if, say, strict scrutiny applies, it’s possible that some of the laws will be said to be carefully drafted enough to satisfy that and others might not. But if rational basis scrutiny applies, all of them will be upheld.”