Traditionally, the last day of the Supreme Court term includes a big case. This year was no exception. Free Speech Coalition v. Paxton is a blockbuster decision. Despite its protests to the contrary, the opinion weakens First Amendment protections and overturns a cornerstone decision in Internet law. But when read in dialogue with precedent, Paxton suggests a jaded Court that has abandoned its late-1990s techno-optimism upon realizing how the Internet has grown up.
The case involved a Texas law requiring Internet-based pornography sites to verify users’ ages. The Free Speech Coalition (FSC), a trade group representing the adult content industry, challenged the law on First Amendment grounds. Texas argued the law was constitutional because it regulated only sexual material that is “obscene as to minors,” meaning content that minors did not have a First Amendment right to consume. But FSC responded that the law burdened the rights of adults, whose right to consume such speech is constitutionally protected.
The Court has addressed this issue before. In 1997, “at the dawn of the Internet age,” Paxton explains, the Court struck down the Communications Decency Act, which prohibited the posting of indecent material online but allowed age verification as a defense. Congress tried again with the narrower Child Online Protection Act, and in 2004 the Court again struck it down in ACLU v. Ashcroft. Because the statute regulated speech on the basis of content, the Court applied strict scrutiny, meaning the government must show a compelling interest and that it used the least restrictive means necessary to achieve that interest. Protecting children met the first part of the test, but Ashcroft found that the district court had not abused its discretion by finding the government did not show age verification was less restrictive to adults’ rights than other potential measures, particularly the use of software filtering.
As my AEI colleague Clay Calvert has shown, Paxton’s attempt to distinguish these cases is unconvincing. The Court argues that the statute regulates only minors, who lack a constitutional right to view this material. But the act doesn’t make kids show ID to get sexual content; it makes adults do so. It thus places a burden on adults’ constitutionally-protected right to access speech, based on that speech’s content. As a result, Justice Kagan’s dissent is correct that strict scrutiny applies (as it did in Ashcroft). Maybe that burden survives this challenging test, maybe not, but the Court’s decision instead to apply the more forgiving intermediate scrutiny test is a departure from clear precedent and weakens First Amendment protections—a repeat of its mistake in the TikTok case earlier this year.
In fact, Paxton fails to engage many of the key themes that animated the earlier Ashcroft decision. For example, Ashcroft highlighted the chilling effect of sacrificing anonymity, by requiring adults to link their identity to objectionable content in ways that could reveal intimate details about one’s sexual preferences. Ashcroft also focused on parental oversight as society’s lodestar for protecting children, a theme that comes through in other First Amendment cases as well (such as Brown v. Entertainment Merchant’s Association, which struck down regulation of violent video games). That’s partially why Ashcroft endorsed filtering as superior to age verification, as it allows parents to limit the content their children consume without burdening adult speech rights. Paxton dismisses filtering rather curtly and contains little discussion of parents’ role in its First Amendment jurisprudence.
When read in dialogue, Paxton is a condemnation of the rosy techno-optimism that shaped early Internet law. The 2004 Ashcroft decision was grounded in faith that, when equipped with the right tools, parents would protect kids from the dangers of pornography and other objectionable content online. Paxton suggests that this faith was horribly misplaced. Texas has stepped in loco parentis to shield kids from online sexual content whether parents like it or not, and the Paxton majority gives a full-throated defense of this practice.
And to be fair, it’s hard to say Paxton is wrong about that. Many teens can, and do, evade parental controls. With the mobile revolution placing a permanent broadband connection in every teenage pocket, teens are consuming more, and likely more graphic, pornography than the Ashcroft Court could have imagined in an era of slow speeds and pixelated jpegs. Everyone agrees that society has a compelling interest in shielding minors from explicit sexual content. Filtering and other parental controls have failed to protect that interest. A more intellectually honest approach would have been to apply strict scrutiny and determine whether Ashcroft was wrong and age verification is the least restrictive means of protecting minors online (as we do offline). Dodging this analysis by watering down the standard of review weakens both the Court’s credibility and the First Amendment.
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