Justice Alito Won’t Block Texas From Enforcing Internet Age Verification Law

The Supreme Court has made it pretty clear that age verification laws for websites violate the First Amendment. It’s had a couple of shots at this and really seemed to indicate that such laws are unconstitutional because age verification would block First Amendment-protected content from people who should be allowed to see it.

So, it was little surprise when a Texas district court ruled that Texas’ law saying adult content websites need to include a form of age verification was unconstitutional. The ruling was detailed and careful.

Which means it was no surprise when the Fifth Circuit did the Fifth Circuit thing and overturned the lower court decision. I already went into the weeds on how silly the opinion was, but it does this weird tapdance where it pretends it can effectively ignore those cases that discussed age verification, because those cases all involved “strict scrutiny” and the judges on the panel felt that this could use a lower standard of “rational basis.”

This is wrong for all the reasons we talked about in that last post, and you probably don’t need another 16 paragraphs in this article about the differences between strict scrutiny and rational basis.

The Free Speech Coalition, who brought the original case, have filed a cert petition for the Supreme Court to hear the case. On the same day, they also filed an emergency petition on what is generally known as the “shadow docket,” asking for the court to stop the enforcement of the law, at least until the Supreme Court has reviewed their cert petition.

Shadow docket applications from each circuit go up to specific Justices, and Justice Alito gets to review the 5th Circuit. This seems unfortunate, given he’s the Justice most likely to go along with their nonsense.

On Tuesday, Alito rejected the request for a stay (without comment).

The Free Speech Coalition put out a statement, mostly about the fact that they’re still focused on getting the main show, the cert petition, picked up by the Supreme Court, and this may just be a temporary bump in the road.

While the Supreme Court has denied our application to stay the Fifth Circuit’s decision upholding age verification requirements in Texas, our petition for full merits review before the Supreme Court remains pending. We look forward to continuing this challenge, and others like it, in the federal courts. The ruling by the Fifth Circuit remains in direct opposition to decades of Supreme Court precedent, and we remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we’ve challenged. We will continue to fight for the right to access the internet without intrusive government oversight.

While perhaps not the most surprising turn of events, it is still a frustrating interim bit of nonsense. Hopefully the petition is granted and the full case can be heard by other Justices who might better remember how the First Amendment works.