Pornography is among the issues the Supreme Court will consider in its new term starting next month, specifically whether a Texas law requiring age verification for access to online sexual content violates the First Amendment.
The 2023 law would impose requirements on any commercial website where more than one-third of its content consists of “sexual material harmful to minors.” The issue on appeal is not so much whether protecting children is laudable, but whether the Texas law unfairly restricts adults in pursuing that stated goal.
The challengers, which include an adult industry group, argue in a brief filed this week against the justices that the age-verification requirement “is unconstitutional on a simple application of First Amendment principles and precedents.” They say the law forces adults “to face serious privacy and security risks — largely unaddressed in the law — before they can access constitutionally protected speech.”
After the case, called Free Speech Coalition v. Paxton, is heard in the new legislative session, a decision is expected in July.
The appeal comes from the 5th U.S. Court of Appeals, where a divided three-judge panel upheld the age verification requirement. In ruling that the First Amendment was not violated, the panel’s majority said the restriction “is rationally related to the government’s legitimate interest in preventing minors from accessing pornography.”
But the question before the Supreme Court is whether the 5th Circuit asked the right question in arriving at that answer. That is, the legal issue the justices have accepted for review is: “Whether the court of appeals erred in law by applying rational basis review, rather than strict scrutiny, to a law that impedes adult access to protected speech.”
The panel applied the less stringent “rational basis” test, which is easier for the government to meet. But the challengers say Supreme Court precedent in this situation requires the stricter “strict scrutiny” test. Under that test, any restriction must be narrowly tailored to advance a compelling government interest and use the least restrictive means to protect minors. The challengers say the law fails that test.
As we saw recently this past term, the Supreme Court has no qualms about telling the 5th Circuit when the justices think the federal appeals court is coloring outside the lines. The challengers, represented by the American Civil Liberties Union, hope this case is one of the last examples of that phenomenon.
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This article was originally published on MSNBC.com
