Can States Restrict Online Content in the Name of Protecting Children? The Supreme Court Will Weigh In.

Jasmine Mithani is a fellow at Tech Policy Press.

On January 15, the Supreme Court heard oral arguments in the First Amendment case, Free Speech Coalition et al. v. Paxton. The case involves the Free Speech Coalition, an adult industry trade group, in addition to several adult content companies and an anonymous content creator, that sued Texas over a law that requires age verification on websites where at least one-third of content is deemed “harmful to children” — defined in the bill exclusively as sexual content.

The law (H.B. 1181) primarily targets pornography websites, as the one-third rule affects sites with a significant amount of adult content while exempting search engines and social media websites. To comply with its age-verification mandates, the law requires companies to implement methods that use government identification or private or public transaction data to confirm a user is over 18 years of age. Unlike Louisiana, the first state to pass an age verification law of this ilk back in 2022, Texas does not offer digital driver’s licenses, meaning measures have to be implemented by third parties. Companies that fail to implement age verification measures in violation of the law can be liable for damages suffered by a harmed minor. The law also empowers the Texas attorney general to enforce civil penalties of $10,000 per day on sites out of compliance.

Originally set to go into effect on September 1, 2023, the law was blocked by a district court. After the state appealed, the US Court of Appeals for the Fifth Circuit reversed the preliminary injunction; however, it found that a provision in the law that required a disclaimer about the perils and potential harms of viewing pornography to be displayed was compelled speech, keeping it enjoined. The Fifth Circuit’s decision paved the way for Texas Attorney General Ken Paxton to sue several adult websites in early 2024.

What’s at stake in the case?

The Supreme Court agreed to take up the case in July 2024 after the Free Speech Coalition appealed the Fifth Circuit decision. The court's decision in Free Speech Coalition et al. v. Paxton will have nationwide implications as 19 states have passed age verification laws, many of them similar to Texas’s law. Yet, the Supreme Court’s review isn’t litigating whether age verification laws are constitutional — though that debate will be back in court down the line — but rather how these courts should evaluate these and other content-restricting laws in the context of the First Amendment.

“We think what this case really is about and what's at stake is what does the government have to show to a court to justify a content-based regulation of speech,” said Vera Eidelman, a staff attorney at the ACLU Speech, Privacy, and Technology Project. The ACLU is representing the Free Speech Coalition as co-counsel.

When the Texas district court initially enjoined Texas’s law, the judge applied strict scrutiny, the most rigorous standard for reviewing laws that affect free speech rights. Under the strict scrutiny standard, a law must be narrowly tailored, further a compelling government interest, and be the least restrictive option. The district court concluded that the Texas law was overbroad and imposed excessive restrictions in granting a preliminary injunction.

On appeal, however, the Fifth Circuit ruled the law only had to satisfy the rational basis standard, a lower level of scrutiny applied to laws that do not infringe on fundamental rights. In applying rational basis, the Fifth Circuit argued that the law did not imperil the free speech rights of adults. And since the law was related to a legitimate government interest in “preventing minors’ access to pornography,” the court found it to be constitutional.

In this case, the specific question before the Supreme Court is, “what level of burden can be enforced on access to free speech in the name of protecting children from viewing pornography?” Ultimately, Free Speech Coalition et al. v. Paxton asks what kinds of restrictions the government can put on free speech under the banner of protecting children.

There are many threads in this case that intersect with the current tech policy debate around online safety, particularly for children. The outcome of the case will likely have repercussions for the future of online speech, and anonymity, influencing how policymakers will continue to pursue age-verification legislation.

What could be the impact?

The Supreme Court ruling will determine which level of scrutiny should apply to the Texas law: rational basis or strict scrutiny. It’s unlikely the justices would rule that intermediate scrutiny applies — the standard between rational basis and strict scrutiny — but it’s not out of the realm of possibility.

The justices will also either make a decision themselves about whether the law satisfies the level of scrutiny or remand it to the Fifth Circuit.

If Texas’ law ultimately satisfies either strict scrutiny or rational basis, the implication would be that laws regulating protected speech can be implemented if they further a government interest and do not infringe on adult speech rights. It would impact future cases involving pornography in particular, as the law uses a modified Miller test to determine whether content is obscene to children specifically. Although pornography is legally distinct from obscenity, children and adults have different rights when it comes to viewing sexually explicit material.

However, regulating certain content because it can be viewed by a child could fundamentally change how users freely access information, especially information that has come under attack from the government, such as reproductive health, LGBTQ+ resources, and books about sexual assault. As Lee Rowland from the National Coalition Against Censorship noted in an ACLU briefing, minors are not monoliths, and what is inappropriate for a five-year-old might be fine for a 16-year-old. But legislatures may fail to make such distinctions, and a favorable decision for the Texas law could open the door for any manner of content restrictions as long as they apply to children or minors and further a government interest.

Moreover, if the courts decide that the law satisfies strict scrutiny, it could mean that the courts find the one-third rule as narrowly defined. The Free Speech Coalition has argued that the classification is vague (Does it mean one-third of the pages on a website? Or one-third of all hosted media?) and can apply to content other than pornography, such as conventional cinema or romance books. While it is unlikely that state attorneys general would pursue litigation against companies like Netflix or Barnes and Noble, based on the one-third limit — which, at least in another state bill that passed, was lowered to one-fourth — could lead many businesses to remove content or implement broader age verification methods.

The courts, in blessing the Texas law based on strict scrutiny, would also need to view age verification as the “least restrictive” method, a shift that could influence proposed legislation and legal precedent. In 2004, the Supreme Court ruled in Ashcroft v. ACLU that the Children Online Protection Act’s age verification requirement was too restrictive, given other available options, like content filtering. In more recent years, public information campaigns and device-based age verification have been floated as less onerous means than sharing identifying information each time a user visits a website. Several briefs filed on behalf of the Free Speech Coalition by technology nonprofits, including the Center for Democracy & Technology, New America’s Open Technology Institute, and Electronic Frontier Foundation, pointed out the privacy risks of age verification.

On the other hand, if the courts decide the law does not pass strict scrutiny, if the opinion is written too broadly it could become a roadblock to any sort of legislation that attempts to protect children online. In a brief filed in support of neither party, the Electronic Privacy Information Center (EPIC) urges the Supreme Court to “issue a narrow opinion that leaves open the possibility for states to pass and enforce kids’ privacy and safe design laws that include age assurance provisions.”

“There is a real danger that some litigants will use a decision against Texas in this case to argue that any privacy or platform design law that involves any age assurance method is categorically unconstitutional,” EPIC continues, later referencing Netchoice, the technology trade union behind legal challenges to the California Age Appropriate Design Act and lobbying against the federal Kids Online Safety Act.

It is commonly agreed that age verification technology is much more sophisticated than in the days of Ashcroft v. ACLU, and the internet has massively changed over the past two decades. EPIC thus urges the justices to “not mechanically apply distinguishable precedent in this case” and instead “demand that the lower courts base their decisions on a robust record reflecting the current state of technology.” The brief notes that opinions could help or hinder future content-neutral laws aimed at making the web safer for children.

The Supreme Court is expected to issue a ruling in June or July this year.