The huge stakes in a new Supreme Court case about pornography

If you’ve studied First Amendment law, it’s impossible not to experience déjà vu while reading the briefs in Free Speech Coalition v. Paxton, a Supreme Court case the justices will hear on January 15 about online pornography. 

That’s because the Texas law at the heart of Free Speech Coalition is in all relevant respects identical to a federal law the Supreme Court blocked in Ashcroft v. ACLU (2004). (That federal law was meant to keep minors from being able to view pornography, and the Texas law attempts to do the same, albeit through a slightly different mechanism.) If the justices take seriously some of the more aggressive arguments Texas makes to defend its law, they could eliminate longstanding free speech protections for sexual content. 

Even the United States Court of Appeals for the Fifth Circuit, which upheld the Texas law, conceded that the two laws are “very similar” — though the Fifth Circuit did, in an unusual act of defiance by a lower court, conclude that it was not bound by the Supreme Court precedent established in Ashcroft and was free to uphold the Texas law anyway. 

It’s tempting, in other words, to dismiss Free Speech Coalition as an insignificant case that should end in the justices rebuking their insubordinate colleagues on the Fifth Circuit. That court has a history of handing down poorly reasoned opinions supporting right-wing results. And the Supreme Court, even with its 6-3 Republican supermajority, frequently reverses the Fifth Circuit’s most disruptive decisions.

And yet, despite the Fifth Circuit’s weak reasoning and a poorly argued brief by the state of Texas defending its law, the state does make one plausible argument that the Court should tweak First Amendment law to make it less friendly to pornography producers.

What is Free Speech Coalition about?

Free Speech Coalition involves a 2023 Texas law that requires many — but not all — websites that distribute pornographic content to verify that their users are over the age of 18. The plaintiffs, a trade association for the pornography industry along with various members of that industry, argues that this law forces “adult users to incur severe privacy and security risks.”

Many adults, in other words, don’t want to submit a picture of their driver’s license to a porn site which could be hacked or subpoenaed, revealing intimate information about its users’ sexual desires.

In Ashcroft, the Supreme Court ruled against a largely identical federal law, which made it a crime for businesses to post material online that is “harmful to minors,” but which also allowed those businesses to escape conviction if they took certain steps to verify the age of their consumers. There are some distinctions between the law at issue in Ashcroft and the Texas law at issue in Free Speech Coalition — most notably, the Texas law only imposes civil, as opposed to criminal, penalties on violators — but even the Fifth Circuit conceded that these distinctions do not change how Free Speech Coalition should be analyzed under the First Amendment.

In Ashcroft, a majority of the justices concluded that the government should have used “less restrictive” methods of keeping children away from porn sites, such as promoting “blocking and filtering software” that allows parents and teachers to prevent a particular computer from loading pornographic websites.

Ashcroft is one of a line of First Amendment decisions establishing that the government typically may not prevent adults from seeing sexual content, even if the goal is to also prevent children from seeing the same material. Under this line of cases, laws that burden an adult’s access to nearly all sexual material must be “narrowly tailored” to achieve a “compelling” goal, which is why Ashcroft required the government to use the least burdensome method to restrict speech. 

Laws that burden constitutional rights — such as the right to free speech — are often subject to this narrow tailoring requirement, which is known as “strict scrutiny.” A law can fail strict scrutiny if it sweeps too broadly, imposing severe burdens on a constitutional right in return for relatively small benefits to society. But laws can also fail strict scrutiny if they are underinclusive, on the theory that a law with too many exceptions and loopholes can still limit constitutional rights without actually achieving a goal that could justify such a limitation.

Texas’s brief defending its 2023 law suggests that the Ashcroft line of cases should be overruled, and that strict scrutiny should no longer apply to laws that seek to prevent children from seeing pornography, but that also restrict the First Amendment rights of adults. If the justices agree, that would give the government far more power to limit adults’ access to sexual content. 

A key element of Texas’s argument seems to be that more oversight is necessary given the breadth of pornography available — the state’s brief is full of lurid descriptions of things like bondage and tentacle porn. Texas’s lawyers appear to believe they can coax the justices into supporting their favored result by bombarding them with graphic descriptions of online pornography.

That said, Texas does make one good argument for allowing some laws restricting young people from viewing pornography to stand. Ashcroft is a 20-year-old decision, and Texas claims that, in the last two decades, new technologies have emerged that make it possible to verify that an internet user is over 18 without threatening that person’s privacy or revealing any other information about them. 

If Texas is correct that this technology does exist, and that it can be fairly easily be used, then at least some laws requiring porn sites to bar underage users are constitutional. That’s because the kind of age-gating software that Texas describes in its brief would achieve the government’s goal of preventing children from seeing online porn more effectively than the content-filtering software endorsed by Ashcroft, and it would do so while imposing only a minimal burden on adults who have a right to see pornography. So a law that requires age-gating may survive strict scrutiny today, even if it didn’t in 2004 when technology was less advanced.

A decision holding that the law may require pornographers to use this kind of secure, privacy-protecting age-gating software would be consistent with Ashcroft, and wouldn’t require the Supreme Court to toss out its previous decisions establishing that adults may view sexual content — an approach that Texas advocates for in much of its brief. Ashcroft, after all, did not rule that age-gating software is forbidden by the Constitution. It merely looked at the state of technology in 2004 and determined that content filtering was the best available option at that time.

What does current law say about free speech and online porn?

For much of American history, the courts largely ignored the First Amendment’s language barring laws “abridging the freedom of speech.” The federal Comstock Act, which has never been formally repealed, made it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” and many states had similar laws that extended beyond the mail. Artists, art dealers, booksellers, and others were arrested for producing or distributing sexual material that the government — or even just a few particularly zealous government officials — deemed too lascivious. 

In one 1883 case, an art gallery owner was convicted for selling reproductions of famous nude paintings, including Alexandre Cabanel’s masterpiece “The Birth of Venus.”

By the middle of the 20th century, however, the Supreme Court began to take the First Amendment seriously, handing down a series of decisions that gradually shrunk the definition of “obscenity” (a legal term that refers to sexual material that is not protected by the First Amendment) until virtually nothing qualified. Yet, while modern First Amendment law broadly permits artists, authors, and pornographers to provide sexual material of all kinds to adults, it’s also well established that the government may bar young people from accessing some content that adults have a right to see.

Both Texas and the Fifth Circuit rely heavily on Ginsberg v. New York, a 1968 case holding that the government may restrict minors’ access to some sexual content. But the facts of this nearly 60-year-old case are very different from those in Free Speech Coalition or Ashcroft.

Ginsberg upheld New York’s prosecution of a lunch counter operator who sold two “girlie” magazines to a 16-year-old boy. This case, in other words, did not involve a law that prevented adults from seeing sexual material. Under the New York law at issue in that case, adults who wished to buy similar magazines could simply show their ID to prove they were of sufficient age, and they could do so without much worry that a hacker or government investigator would discover that they bought a magazine full of nude pictures.

The Ashcroft line of cases, by contrast, all involve technologies that can widely broadcast sexual material in ways that make it difficult to check whether each consumer of that material is an adult. One 1989 case, for example, struck down a ban on “dial-a-porn” services, where callers could dial a phone number (and pay a fee) to hear a prerecorded, sexually explicit message.

These decisions, moreover, established that laws which restrict adults’ access to sexual content generally must survive strict scrutiny, and they did so several years before Ashcroft applied this rule to the internet. In United States v. Playboy Entertainment Group (2000), for example, the Supreme Court struck down a federal law that effectively prohibited cable television stations from broadcasting pornography except between 10 pm and 6 am.

Playboy could not possibly be clearer in holding that laws which prevent adults from seeing sexual material that they have a right to see must survive strict scrutiny — even if those laws are intended to shield children from pornography. In the Court’s words, “even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative.”

Ashcroft, in other words, was hardly a groundbreaking decision. It simply took the rule which had already been established in cases like Playboy, and applied it to the new context of online pornography. And yet, despite this long line of cases that all point in exactly one direction, the Fifth Circuit concluded that it could defy all of these cases. It did so largely by implying that the George W. Bush-era Justice Department was staffed by rank incompetents.

According to the Fifth Circuit, the Ashcroft opinion “contains startling omissions.” Though the opinion held that the federal law at issue in that case “would fail strict scrutiny,” Ashcroft did not actually explain why strict scrutiny should apply to a law restricting online porn. 

The Fifth Circuit claimed that “omission” occurred because the Justice Department lawyers who litigated Ashcroft failed to make the argument that strict scrutiny should not apply (instead, they claimed that the law at issue in Ashcroft survived strict scrutiny). According to the Fifth Circuit, because the DOJ never argued against strict scrutiny, Ashcroft never actually established a legal rule requiring courts to apply strict scrutiny in similar cases.

It’s hard to know where to even begin with this argument. Lower courts are bound by Supreme Court decisions, even if they disagree with those decisions. Judges cannot refuse to follow Supreme Court cases because they think the lawyers who argued those cases did a bad job.

In Ashcroft, moreover, there was a pretty obvious reason why the Justice Department decided not to argue against strict scrutiny. Playboy was decided in 2000, four years before Ashcroft was argued before the justices. So it was already settled law in 2004 that strict scrutiny applies to cases like Ashcroft.

And, while the DOJ may have decided not to press the case against strict scrutiny in its Ashcroft briefing and arguments, one of the justices did. Justice Antonin Scalia published a dissenting opinion in Ashcroft which argued that his eight colleagues erred in “subjecting [the federal anti-porn law] to strict scrutiny.” So the justices who decided Ashcroft were hardly unaware of the arguments against strict scrutiny. Eight of them were simply unpersuaded by those arguments.

So how should the Supreme Court handle Free Speech Coalition?

The First Amendment issues presented by Free Speech Coalition are serious. And the question of whether technology has advanced to the point where it is possible both to shield minors from online pornography and ensure that adults can access any material they have a right to see is a difficult one that deserves a serious look by the federal courts.

So it’s a shame that both the Fifth Circuit’s opinion and Texas’s brief are so poorly argued. Proponents of age-gating on porn sites deserve better advocates. They also deserve a more competently drafted law than the one at issue in Free Speech Coalition.

The Texas law at issue in Free Speech Coalition appears to have been drafted without any input from a First Amendment lawyer. If Texas is correct that software can verify which consumers of online porn are adults without threatening their privacy, then the Supreme Court should uphold a properly crafted law requiring porn sites to use those services. But it should not uphold this Texas law.

That’s because Texas’s law is not structured to survive strict scrutiny. Recall that strict scrutiny requires the courts to strike down laws that aren’t “narrowly tailored” to advance a “compelling interest,” and that this narrow tailoring requirement bars laws that are so underinclusive that they don’t actually do much to advance that interest.

Texas’s law mocks this narrow tailoring requirement by applying its restrictions on online pornography to only a small subset of websites where pornography appears. Specifically, the law applies only to a business that “knowingly and intentionally publishes or distributes material on an Internet website … more than one-third of which is sexual material harmful to minors.”

For starters, it’s unclear how, exactly, the law measures how much of a website is devoted to “sexual material.” Is this determined by looking at how many bytes of data are devoted to pornography? How many minutes of video? How many inches of screen space? 

But, even setting this vagueness concern aside, one of the main purposes of strict scrutiny’s narrow tailoring requirement is to block laws that burden constitutional rights without actually doing much to achieve the government’s goals. The Texas law’s one-third requirement means it would not actually block minors’ access to pornography, thus failing to achieve the state’s objective. 

As the Free Speech Coalition plaintiffs explain in their brief, the trial court which heard this case “found that social media platforms like Instagram and Facebook contain ‘material which is sexually explicit for minors,’ and sites like Reddit ‘maintain entire communities and forums’ devoted ‘to posting online pornography.’” So Texas’s law won’t actually stop anyone from seeing online porn, it will just shift their porn consumption from Pornhub to Reddit.

And so, even if age verification apps work as Texas says they do, this particular law still violates the First Amendment and should be struck down for failing to satisfy strict scrutiny. Should the Court decide to follow this path, which is the only path consistent with existing law, it could also make clear that a better-drafted law might survive strict scrutiny — again, assuming that it is actually possible to construct age gates around online pornography without threatening the privacy of adults.

In any event, there is no need to overrule decisions like Ashcroft, or to pretend those decisions can be ignored like the Fifth Circuit did, in order to uphold age-restrictive laws.