FREE SPEECH
Does the Texas Age-Verification Law for Adult Websites Violate the First Amendment?
Does the Texas Age-Verification Law for Adult Websites Violate the First Amendment?
The Texas law requires adult websites to implement age-verification systems and display health warnings about pornography’s alleged risks. It penalizes violations with steep fines and criminal penalties. Free Speech Coalition, Inc., and other petitioners argue the law violates the First Amendment by imposing content-based restrictions and chilling lawful speech. Texas defends the law as a necessary measure to protect minors and educate the public about pornography's dangers.
Free Speech Coalition, Inc. v. Paxton
Docket No. 24-531
Argument Date: January 15, 2025
From: The Fifth Circuit
by Steven D. Schwinn, University of Illinois Chicago School of Law, Chicago, IL
As a general matter, government content-based restrictions on speech are subject to strict scrutiny, a rigid test under which most laws fail. But the Court carved out an exception that allows the government to regulate hardcore sexual content, or “obscenity.” The Court also allowed the government to regulate sexual speech that is harmful to minors, even if that speech falls short of obscenity, under rational basis review, a loose test under which most laws stand. The parties wrangle over the appropriate level of review to assess H.B. 1181: strict scrutiny or rational basis review.
Is Texas’s age-verification requirement for visitors to commercial websites that contain more than one-third of content that is “sexual material harmful to minors” subject to strict scrutiny or rational basis review?
In June 2023, Texas enacted a law, H.B. 1181, that requires age verification by any commercial website “more than one-third of which is sexual material harmful to minors.” Tex. Civ. Prac. & Rem. Code § 129B.002(a). To comply with the law’s age-verification requirement, a covered website must “verify that an individual attempting to access the [site] is” at least 18 years old using “digital identification,” “government-issued identification,” or “a commercially reasonable method that relies on public or private transactional data.” Tex. Civ. Prac. & Rem. Code §§ 129B.002(a) and 129B.003. Under H.B. 1181, a covered entity “may not retain any identifying information of the individual.” Tex. Civ. Prac. & Rem. Code § 129B.002(b). But the law does not prohibit an entity from transmitting that information, and it does not establish security standards related to that information. H.B. 1181 also requires covered websites to post scripted “sexual materials health warnings” on the “landing page” and “all advertisements,” along with “helpline” numbers for “substance abuse and mental health.” Tex. Civ. Prac. & Rem. Code § 129B.004. The warning says that “[p]ornography is potentially biologically addictive” and “proven to harm brain development,” and that “[e]xposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.” Tex. Civ. Prac. & Rem. Code § 129B.004(1).
Websites that violate H.B. 1181 face penalties ranging from injunctive relief to fines up to $10,000 per day, plus enhancements of up to $250,000. Free Speech Coalition, Inc., an adult industry trade association, and several adult-content producers sued to halt the law soon after it was signed, arguing that it violated free speech on its face. (We’ll refer to the plaintiffs collectively as Free Speech Coalition.) The district court entered a preliminary injunction. The U.S. Court of Appeals for the Fifth Circuit first stayed the injunction pending appeal. A three-judge panel then upheld the injunction as to the health-warnings provision but vacated the injunction as to the age-verification provision. The Court agreed to hear Free Speech Coalition’s appeal as to the age-verification provision. (The health-warning provision is not a part of the case now before the Court.)
In general, when a law regulates speech based on its content, courts apply strict scrutiny. Under this rigid test, courts strike a law unless it is the least restrictive way to achieve a compelling government interest. Most laws that regulate speech based on its content fail this test. The Court, however, has carved out limited exceptions for certain categories of low-value speech. One of those categories is obscenity. The Court defined “obscenity” as material that “depicts or describes…sexual content” (as specifically identified by statute) in a “patently offensive” way that “appeals to the prurient interest,” and, taken as a whole, “lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15 (1973). In short, obscenity is hard-core sexually explicit speech, and under Miller the government can regulate it. At the same time, the Court has held that a state can limit minors’ access to sexually explicit material that the state reasonably found harmful to them. Ginsberg v. New York, 390 U.S. 629 (1968). The Court has held that states can regulate this material even if it falls short of “obscenity.”
The Court most recently applied these principles to government regulation of online material in Ashcroft v. ACLU. 542 U.S. 656 (2004). That case tested the federal Child Online Protection Act (COPA), which imposed a fine and prison sentence on a person who posted commercial online material that Congress deemed harmful to minors under a modified obscenity standard like the one in Ginsberg. COPA included a defense, however, for a person who otherwise violated the act if the person obtained age verification from those who sought to view the material. Because COPA burdened adults’ access to protected material (by requiring age verification), the Court applied strict scrutiny. Applying that test, the Court ruled that COPA likely violated the First Amendment, because “less restrictive alternatives” like content-filtering software “would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”
In ruling on this case, the Fifth Circuit acknowledged that H.B. 1181’s age-verification requirement was “very similar” to the COPA provision at issue in Ashcroft. Nevertheless, the court held that rational basis review (and not strict scrutiny) applied, given the Court’s ruling in Ginsberg. (While strict scrutiny is the most demanding test known to constitutional law (and almost always means that the challenged law will fail), rational basis review is the least demanding test (and almost always means that the challenged law will stand).)
Free Speech Coalition argues that strict scrutiny applies to H.B. 1181’s age-verification requirement. It claims that the requirement applies to speech that Texas deemed inappropriate for minors, but that is fully protected for adults. (Free Speech Coalition points out that the age verification requirement is triggered when a website contains material that is “inappropriate for minors,” including very young minors, and that it therefore covers a vast array of material that is easily protected for adults.) It says that the requirement regulates protected speech for adults by requiring adults to verify their age before viewing the material. Moreover, it contends that “it imposes a clear burden, forcing adult users to incur severe privacy and security risks.” Free Speech Coalition asserts that “an unbroken line of cases dating back decades,” culminating in Ashcroft, applies strict scrutiny to such regulations. It says that the Fifth Circuit wrongly applied rational basis review on the mistaken ground that the government failed to argue—and the Court failed to specify—that strict scrutiny applied to COPA in Ashcroft. (Free Speech Coalition contends that both the government and the Court understood that strict scrutiny applied to COPA, and that the Court actually applied strict scrutiny.) It contends that the Ashcroft Court “did not adopt the rational-basis review standard of Ginsberg, because that standard applies to the definition of obscenity for minors—not to the imposition of burdens on adults.”
Free Speech Coalition argues next that H.B. 1181 fails under the proper standard, strict scrutiny. It says that H.B. 1181 is not sufficiently tailored to the state’s interests. It contends that the law applies to whole websites that contain more than one-third content that is inappropriate for minors, and therefore “restricts adults’ access to speech that is not even sexual and not even arguably obscene for minors.” It asserts that H.B. 1181 “exempts search engines and social-media sites that make available to minors huge quantities of the same content that the statute restricts on petitioners’ websites.” And it contends that the law “fails to adopt less restrictive and more effective alternatives to burdensome online age-verification, such as the content filtering software that this Court identified in Ashcroft.”
Finally, Free Speech Coalition argues that it satisfies the other requirements for a preliminary injunction. (Remember, Free Speech Coalition appeals the Fifth Circuit’s vacatur of the district court injunction.) Free Speech Coalition says that its members and Texas adults “are irreparably harmed by the loss of their First Amendment freedoms and the prospect of crippling enforcement proceedings and unrecoverable compliance costs.” And it claims that “the equities and public interest strongly favor enjoining enforcement of the statute until the litigation is complete.”
The government weighs in to support vacatur of the Fifth Circuit ruling. The government makes arguments that are substantially similar to those of Free Speech Coalition about the proper standard, strict scrutiny. But the government stops short of asking the Court to apply strict scrutiny to the law. Instead, the government urges the Court to remand the case for application of strict scrutiny, with an instruction to the lower courts that “strict scrutiny does not foreclose Congress or the States from restricting the distribution of harmful sexual material to children online.” Moreover, the government warns that Free Speech Coalition’s “view of that standard…would threaten to foreclose effective regulation addressing an important problem that has only become more urgent in the years since the Court last considered it.”
Texas counters that the Fifth Circuit correctly applied rational basis review under Ginsberg, and that Free Speech Coalition is wrong to argue otherwise. For one, the state says that the “threshold determination[]” of “whether the content is constitutionally protected in the first place” has “never been subjected to strict-scrutiny review.” For another, Texas contends that Ashcroft did not overrule Ginsberg, and that the state “acted well within its police power by imposing [an age-verification] requirement on websites trafficking in hardcore pornography.” The state asserts that if Ashcroft prevents it from requiring the same age verification that it may require for “comparable websites” (such as gambling websites, or websites that sell alcohol), then the Court should overrule Ashcroft.
Texas argues that even if heightened scrutiny applies, H.B. 1181 should prevail. Texas says that it has an “overwhelming” interest in preventing harm to children, and that “as more than two decades of failed filtering confirms, Texas cannot vindicate its interest in any other way.” The state contends that Free Speech Coalition is wrong to argue that H.B. 1181 “does not regulate every website where obscenity is available,” and that the law is therefore impermissibly underinclusive, because Texas can focus on its “most pressing concerns” and “need not address all aspects of [the] problem in one fell swoop.” Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015). Moreover, Texas claims that Free Speech Coalition cannot show that content filtering is as effective as age verification in protecting children. Indeed, the state asserts that filtering “has proven an ineffective mechanism.”
Texas argues next that Free Speech Coalition’s facial challenge to H.B. 1181 must fail. The state says that Free Speech Coalition’s challenge and the district court’s ruling both “rest on speculation” about how the law will apply. As a result, Texas contends that Free Speech Coalition cannot demonstrate that H.B. 1181 is unconstitutional in all its applications, as a facial challenge requires.
Finally, Texas argues that Free Speech Coalition failed to demonstrate the other requirement for a preliminary injunction. The state contends that Free Speech Coalition “did not identify a single adult who has been chilled from visiting their websites, and they cannot show that any (nonexistent) injury outweighs harm to children.” According to the state, “[e]nforcement of H.B. 1181 has been permitted for more than a year and the sky has not fallen.”
This case is the first test of an age-verification requirement for fully protected material for adults on a website since Ashcroft. If the Court faithfully applies that case, it’s hard to see how it doesn’t apply strict scrutiny. As Free Speech Coalition argues, H.B. 1181’s sweep is incredibly broad, apparently applying to websites with just over one-third sexual content that is harmful to any minor, even the youngest. If that’s right, H.B. 1181 plainly regulates material that is fully protected speech for adults. Under well-established doctrine, such a regulation is subject to strict scrutiny. Moreover, the Fifth Circuit’s and Texas’s reasons for applying rational basis review are a significant stretch under current doctrine. Finally, the Court has demonstrated a strong aversion in recent years and decades to applying and expanding categories of unprotected speech, like obscenity. All this suggests that the Court likely took up the case merely to correct course. If so, look for the Court to remand the case for application of the strict scrutiny test, and not to apply the test itself.
On the other hand, this Court has issued some surprises in recent terms, and it hasn’t hesitated to sharply limit well-established doctrine, to give a new reading to long-settled principles, or even to overturn bedrock cases. Ashcroft is 20 years old, and the Internet and sexual content have both changed dramatically in that time. The Court may take the opportunity to put a new gloss on its approach to government regulation of online sexual speech.
Moreover, the Court may be skeptical of Free Speech Coalition’s pre-enforcement facial challenge. Texas argues that the Coalition’s case is based on an incomplete record and mere speculation about how H.B. 1181 will apply, including how it will apply to any covered content that constitutes obscenity for adults. If the Court agrees, it could send the case back for further development before it rules. The Court made a similar move just last term, when it remanded facial challenges against Florida and Texas laws that restricted content moderation by large social-media companies. Moody v. NetChoice, LLC, 603 U.S. 707 (2024).
One final note. Given that Ashcroft applied strict scrutiny to a federal law very similar to Texas’s law, H.B. 1181 appears to be an effort to nudge or even thrust the law in a new direction with a differently composed Supreme Court. If so, the gambit worked in the Fifth Circuit. This case will tell us if it works at the Court.