The US Supreme Court concluded in Free Speech Coalition v. Paxton that the government can force adults to disclose personal, age-verifying information to access sexual content they have a First Amendment right to view but that’s forbidden for minors. I previously criticized the majority for creating a workaround from the demanding strict scrutiny standard of judicial review, thereby making it easier to uphold Texas’s age-verification law for adult-oriented websites.
Texas’s measure targets sexual material that’s “harmful to minors”—expression the Court calls “obscene to minors”—but doesn’t constitute unlawful obscenity for adults. The Court determined that imposing an age-verifying burden on adults that chills their right to receive such speech doesn’t violate their First Amendment rights because it “advances [Texas’s] important interest in shielding children from sexually explicit content.”
I recently explained how the decision is patently narrow, applying only to age-verification mandates targeting access to sexual content that, in Justice Clarence Thomas’s words for the majority, “the First Amendment partially protects.” (emphasis in original). In Free Speech Coalition, that meant sexual speech that’s protected for adults but not for minors. In short, the ruling has no bearing on age-verification laws that hinder the rights of both minors and adults to access (and engage in) speech that’s fully protected by the First Amendment.
Two additional points about the Court’s decision—proportionality and framing—are addressed below.
Proportionality Review: Thomas Channels Breyer.
Content-based laws (ones addressing some subjects but not others, such as Texas’s law targeting sexual speech) typically face strict scrutiny review. Thomas and the majority, however, rejected applying strict scrutiny to test the validity of Texas’s statute, largely because it’s too difficult to pass. He noted that in only one speech case where at least five justices believed strict scrutiny applied had a statute survived it. Thomas called strict scrutiny “unforgiving” and “fatal in fact absent truly extraordinary circumstances.” He deemed it “ill suited” for the “nuanced work” of evaluating age-verification requirements, thus leading him to conclude that “the only principled way to give due consideration to both the First Amendment and States’ legitimate interests in protecting minors is to employ a less exacting standard.”
Thomas’s desire to give “due consideration” in a “nuanced” way to the competing free speech and regulatory interests sounds remarkably like former liberal Justice Stephen Breyer’s approach to scrutiny. Breyer rejected the stance that strict scrutiny applies simply because a law is content based; he embraced “a more flexible, proportionality form of scrutiny” popular in other countries but not in the US. Breyer explained in 2022 that:
where strict scrutiny’s harsh presumption of unconstitutionality is at issue, it is particularly important to avoid jumping to such presumptive conclusions without first considering “whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.”
The irony is that a decade ago in Reed v. Town of Gilbert, Thomas created a clear formula for determining when a law is content based and thereby almost automatically faces strict scrutiny. Breyer wrote a concurrence in Reed warning about the dangers of Thomas’s rigid methodology, contending “the First Amendment requires greater judicial sensitivity both to the Amendment’s expressive objectives and to the public’s legitimate need for regulation than a simple recitation of categories, such as ‘content discrimination’ and ‘strict scrutiny,’ would permit.” Breyer rejected the “strict formalism” of Thomas’s scrutiny framework in Reed.
Whether Thomas’s newfound fondness for Breyer’s scrutiny methodology is a one-off confined to “partially” protected sexual content is unclear.
Framing. To grease the skids for a decision that burdens First Amendment rights, it helps to subtly denigrate the group that’s fighting for free speech. The group here is the Free Speech Coalition (FSC), which describes itself as “the trade association of the adult entertainment industry based in the United States.” Its website adds that the FSC’s mission “is to protect the rights and freedoms of both the workers and businesses in the adult industry,” and that it takes “pride in fighting to alleviate the social stigma, misinformation, and discriminatory policies that affect those who work in and adjacent to the adult industry.” Nowhere on the organization’s “About the Free Speech Coalition” page does the socially stigmatizing word “pornography” appear.
Yet, when Justice Thomas described the FSC, he called it “a trade association for the pornography industry,” not the adult industry. Semantics matter because under US law, there are three distinct categories of sexual speech: obscenity, child pornography (sometimes called child sexual abuse material), and variable obscenity (content targeted in Free Speech Coalition that’s obscene to minors but not adults). Notably, pornography is not a legal term; it’s just a disparagingly loaded word. Thomas unloaded it against the FSC, making it just that much easier for adults to stomach a decision burdening their own First Amendment rights.
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