Free Speech Coalition, Inc. v. Paxton

Issues

What level of judicial review is required for a court to evaluate a law that intends to protect minors from pornographic content but, as a result, burdens adults’ access to such content?

Oral argument:
January 15, 2025
Court below:
United States Court of Appeals for the Fifth Circuit

H.B. 1181 is a Texas law seeking to regulate commercial entities that publish sexual material. When more than one-third of the entities’ published material is sexually explicit, H.B. 1181 requires those entities to implement age verification systems. Free Speech Coalition argues that H.B. 1181’s age verification provision burdens adult access to constitutionally protected speech and thus the Supreme Court should apply strict scrutiny when reviewing it. Free Speech Coalition further argues that it meets the requirements for a preliminary injunction on the enforcement of H.B. 1181’s age verification provision. Paxton, on the other hand, argues that rational basis review should apply to the age verification provision because it is not content-based or speaker-based discrimination. Paxton further counters that Coalition has not proved it meets the requirements for a preliminary injunction on the enforcement of the age verification provision. The Supreme Court’s decision in this case will influence how future statutes impacting protected speech may be reviewed by courts, how state governments can regulate pornography distributors to protect minors, and how the data privacy and cybersecurity of adults who use pornography websites will be weighed by the courts.

Questions as Framed for the Court by the Parties

Whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.

Facts

H.B. 1181 is a Texas law intended to apply to commercial entities that publish sexual material. The law targets websites, including social media platforms, where more than one-third of the content is considered sexually explicit and harmful to minors. The law requires websites to verify the ages of their users as adults, and display health warning notices on the home landing page and all website advertisements about the effects of consuming pornography. The law defines what qualifies as “sexual material harmful to minors” based on the “Miller test” from the United States Supreme Court case Miller v. California . If an entity does not comply with H.B. 1181, a court may grant an injunction and impose civil fines for each day a company lacks age-verification, each instance of improperly retaining identifying information, or for a minor’s accessing of the website’s material.

The Free Speech Coalition is an adult industry trade association that filed this lawsuit before H.B. 1181 took effect. The United States District Court for the Western District of Texas applied strict scrutiny to H.B. 1181, and concluded that H.B. 1181 likely violated Free Speech Coalition’s First Amendment rights by requiring age verification systems and health warning notices, which burden adult access. The district court also concluded that H.B. 1181 is likely preempted by Section 230 of the Communications Decency Act . The district court further ruled that the Free Speech Coalition satisfied the other preliminary injunction factors, granting it a preliminary injunction preventing H.B. 1181 from taking effect. The Court of Appeals for the Fifth Circuit vacated the preliminary injunction, finding rational basis review to be the proper standard of review. The Fifth Circuit noted that in the Supreme Court case Ginsberg v. New York (“ Ginsberg ”) , the content-based restriction on speech was evaluated under rational basis review, which the Supreme Court case Ashcroft v. American Civil Liberties Union (“ Ashcroft II ”) never overruled. The Fifth Circuit further found that H.B. 1181 was like the regulation in Ginsberg because the law targeted distribution of harmful material to minors instead of targeting distribution to all audiences including adults. Thus, the Fifth Circuit concluded that H.B. 1181 did not violate Free Speech Coalition’s First Amendment rights under rational basis review. However, the Fifth Circuit affirmed the preliminary injunction related to the health warning notice requirement. The Fifth Circuit found that the regulated entities were communicating commercial speech, prompting review of H.B. 1181 under the commercial speech doctrine . Under this doctrine, the Fifth Circuit concluded that the health warning notices required by H.B. 1181 were unconstitutionally compelled commercial speech. Finally, the Fifth Circuit concluded that H.B. 1181 was not preempted by the Section 230 of the Communications Decency Act.

Free Speech Coalition petitioned the Supreme Court of the United States to hear this case. The Supreme Court granted certiorari on July 2, 2024. The only question presented to the Supreme Court regarded the vacated preliminary injunction on the age verification requirement of H.B. 1181.

Analysis

DETERMINING THE APPROPRIATE STANDARD OF REVIEW

Free Speech Coalition (“Coalition”) argues that the Court should apply strict scrutiny to review the age verification requirement of H.B. 1181 because it is a content-based restriction on speech related to sexually explicit expression, which is constitutionally protected. Coalition contends that Supreme Court precedent requires strict scrutiny for laws that burden adults’ access to non- obscene sexual content, even when those laws intend to protect minors. Coalition notes that content-based burdens must face the same rigorous scrutiny as content-based bans. Additionally, Coalition asserts that Ginsberg established a narrow exception to First Amendment protections, restricting minors’ access to sexual content without diminishing the constitutional protection of adults’ speech. The law in Ginsberg criminalized the known sale of harmful materials to minors specifically, while allowing adults to access them legally. Based on this narrow exception, Coalition notes that the Court applied rational basis review. In comparison, Coalition points to decisions post- Ginsberg where if a law burdened adults’ access to constitutionally protected sexually explicit material while attempting to restrict minors’ access to that material, the Court has applied strict scrutiny. Specifically, Coalition notes that the Child Online Protection Act (“COPA”) in Ashcroft II , which allowed age verification as an affirmative defense, was content-based and triggered strict scrutiny by the Court. Because the law in Ashcroft II was evaluated under strict scrutiny, Coalition contends that H.B. 1181 should also be evaluated under strict scrutiny. Further, Coalition argues that H.B. 1181 embodies speaker-based discrimination as it targets the online adult material industry while leaving identical sexual content unregulated on other platforms, such as exempting social media websites, search engines, and websites that limit sexual content to one-third of their total content. Coalition contends that H.B. 1181 thus creates an unfair distinction where the same type of content is treated differently based solely on who is presenting it. Coalition maintains that due to this discriminatory treatment of speakers, H.B. 1181 should be subject to strict scrutiny review.

Paxton responds that H.B. 1181 is not a content-based restriction on speech, so strict scrutiny does not apply. Paxton notes that materials that are obscene for minors are traditionally an unprotected category of speech. Paxton argues that H.B. 1181 therefore does not regulate protected speech but merely regulates adults’ access to unprotected speech. For these reasons, Paxton contends that H.B. 1181 does not qualify as a content-based restriction requiring review under strict scrutiny.

Paxton compares the situation in Ginsberg , where a shopkeeper in a brick-and-mortar store verified the ages of customers purchasing sexual material, to the modern-day website performing the same gatekeeping function through age verification systems. Thus, Paxton argues that the law merely imposes a gatekeeping function on commercial entities and is thus more like the law in Ginsberg where the Court applied rational basis review. Paxton contends that H.B. 1181 can also be distinguished from the Court’s post- Ginsberg cases (banning speech for all listeners regardless of age) because H.B. 1181 only requires the speaker to act as a gatekeeper, ensuring that the listeners who have a constitutional right to access the material can still do so. Specifically, Paxton argues that Ashcroft II does not apply in this case because the law in Ashcroft II imposed criminal penalties representing a greater burden on the freedom of speech than H.B. 1181, which imposed civil penalties, and because technological advancements in recent years have reduced the burden of age verification as compared to when Ashcroft II was decided. Thus, Paxton contends that H.B. 1181 should not be evaluated under strict scrutiny, but rather rational basis review.

Further, Paxton argues that H.B. 1181 does not involve speaker-based discrimination because it regulates speakers based on whether their speech is protected, not based on their identity or viewpoint. Paxton contends that exempting search engines and websites with less than one-third harmful content does not discriminate against the adult material industry because those search engines and websites must comply with H.B. 1181 if they reach the threshold even if they are outside of the industry. Thus, Paxton maintains that since H.B. 1181 seeks to regulate only those in the business of distributing harmful material, which Paxton posits is a state prerogative, H.B. 1181 should be subject to rational basis review.

PRELIMINARY INJUNCTION FACTORS

Coalition argues that it is likely to succeed on the merits of the case, as discussed above. Coalition contends that H.B. 1181 is overinclusive by design and restricts far more speech than necessary to accomplish its stated purpose, as the law’s requirements apply to the entire website even when only part of its content is sexually explicit and harmful to minors. Coalition also asserts that H.B. 1181 is simultaneously underinclusive compared to its asserted justification, as search engines and social media sites that can give minors access to pornography are exempted from the Act’s age verification requirement if less than one-third of their material are considered sexually explicit and harmful to minors. Further, Coalition states that H.B. 1181 does not employ the least restrictive means of preventing minors’ access to sexually explicit content, as the district court found content-filtering software downloaded on end user devices is a less restrictive means of restricting sexually explicit content that functions even more effectively than age verification. Coalition maintains that as Texas already separately criminalizes obscenity for adults, the purpose of H.B. 1181 is to impose age verification burdens on material obscene for minors but not adults. Coalition thus argues that the Court should treat H.B. 1181 like the law in Ashcroft II, which was challenged facially and subject to preliminary injunction. Coalition also argues that the potential loss of its First Amendment freedoms constitutes irreparable harm, another requirement for a preliminary injunction to be granted. Coalition maintains that it would incur unrecoverable compliance costs if the Court does not grant the injunction and that the balance of equities and public interest also strongly favor Coalition since states have no legitimate interest in enforcing unconstitutional laws. Thus, Coalition asserts that it meets the preliminary injunction requirements in this case.

Paxton responds that Coalition is not likely to succeed on the merits of the case as discussed above and thus does not satisfy the principal requirement for a preliminary injunction. Paxton argues that H.B. 1181 is not overinclusive because websites could avoid the law’s application by rigidly segregating obscene material, and Texas courts typically construe statutes to avoid constitutional concerns. Paxton also counters that underinclusiveness of the law is not fatal, as governments are not required to regulate everything all at once but may instead focus on their most pressing concerns. Paxton further contends that Coalition is unable to show that the law is unconstitutional in a substantial number of realistic applications, as the mere possibility of an unconstitutional application is not enough to succeed on the merits of the claim.

Paxton also counters that just because a different law in Texas already criminalizes obscenity does not mean that H.B. 1181 is directed at constitutionally protected speech. Paxton notes that for a “chilling” argument to succeed, the content that individuals are chilled from accessing must be constitutionally protected, which is not the case here. Paxton also maintains that a preliminary injunction is an extraordinary remedy requiring the plaintiff to establish a likelihood of irreparable harm, which Coalition is unable to do. Paxton contends that Coalition has not identified a single adult who has been chilled from visiting their websites, while minors in Texas will suffer irreparable harm if the law is enjoined, implicating the public interest. Thus, Paxton asserts that Coalition cannot meet all preliminary injunction requirements and so the injunction granted by the Fifth Circuit should remain.

Discussion

IMPACT ON PROTECTED SPEECH

American Booksellers for Free Expression, joined by four other book distributors and publishers (“ABFE et al.”), in support of Coalition, contend that H.B. 1181 threatens to restrict the constitutionally protected works of publishers, authors, and booksellers. ABFE et al. assert that because H.B. 1181 restricts sites distributing or publishing content where even one-third is deemed harmful to minors, protected published works with sexual themes including “contemporary fiction, literary classics, young adult fiction, and health books” may also be restricted. Eight First Amendment Scholars (“the First Amendment Scholars”), in support of Coalition, argue that imposing age verification requirements on adult websites violates the users’ First Amendment rights to anonymity in speech and association, which have historically ensured that individuals could engage in discourse on sensitive subjects without fear of retaliation. The First Amendment Scholars contend that forcing users to disclose personal information will create a chilling effect that will discourage adults from lawfully participating in constitutionally protected speech.

Conversely, the Attorneys General of twenty-four states (“the States”), in support of Paxton, argue that H.B. 1181 regulates little, if any, constitutionally protected speech because the law targets websites that present explicit sexual content intended to arouse, which do not have First Amendment protections. Further, the States explain that the minor risk of chilling “low-value speech” should not be used to extend First Amendment protections to “obscene” hardcore pornography. The Justice Defense Fund (“JDF”), in support of Paxton, additionally counters that material on the internet is never accessed anonymously anyway, so no speech would be chilled due to the age verification requirements. On the contrary, JDF highlights how the website Pornhub collects, uses, stores, transfers, and monetizes personal data with every site visit.

IMPACT OF PORNOGRAPHY ON MINORS

The International Centre for Missing & Exploited Children (“ICMEC”), in support of Coalition, argues that H.B. 1181 will not protect minors from adult content because it fails to address widely accessible tools regularly used to evade website-based age verification, such as VPNs. By prohibiting minors from accessing well-regulated adult websites, ICMEC highlights how H.B. 1181 will incentivize minors to seek out unregulated websites that would expose minors to even more harmful content, including revenge porn, child sexual abuse material, and sexual solicitation. ICMEC contends that minors are better protected by constitutionally permissible restriction methods like content filtering.

However, five Social Science Scholars (“the Social Science Scholars”), in support of Paxton, highlight significant research demonstrating how minors who view pornography are more likely to engage in unhealthy sexual behaviors that enhance poor health outcomes, teen pregnancy, economic disparities, and violent behavior. Further, the Social Science Scholars contend that since the majority of minors in the United States now consume pornography well before they reach adulthood, content filtering has clearly failed.

DATA PRIVACY AND CYBERSECURITY CONCERNS

The Center for Democracy & Technology, along with two technology non-profit organizations and three professors (“CDT et al.”), in support of Coalition, argue that existing age verification technologies introduce significant data privacy and cybersecurity risks. Further, CDT et al. contend that while H.B. 1181 has a non-retention requirement for websites performing age verifications, H.B. 1181 neither prevents those websites from transmitting or selling that data, nor prevents third parties accessing this data without performing age verifications from retaining, transmitting, or selling that data. Since the users’ identity will be associated with potentially embarrassing browsing behavior, CDT et al. assert that cybercriminals may target this information. Thus, CDT et al. contend that H.B. 1181 forces adults to accept major privacy and security risks to access constitutionally protected material, which will deter them from exercising their First Amendment rights.

Conversely, the Age Verification Providers Association (“AVPA”), in support of Paxton, argues that many of the commercially available age verification systems allow users to verify their age online with lower risks to their privacy than when verifying their age in-person. AVPA highlights that many systems do not require users to submit any personally identifiable information, while those that do encrypt the data by scrambling it into “meaningless strings of numbers and letters.” Further, AVPA explains that all systems protect user data from malicious third parties. Additionally, AVPA counters the CDT’s assertion that personal data is paired with information on sensitive browsing data by stating that personal data collected is never linked with browsing data and is not retained by AVPA.

Conclusion

Authors

Written by: Esther In and Alexandra “Lexie” Kapilian

Edited by: Tedrick Au

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his insights into this case.

Additional Resources