Texas AG Upbeat After Supreme Court Hears Argument in Age-Verification Case

Texas Attorney General Ken Paxton (R) sounded optimistic after oral argument. “We’re not going to lose,” he told reporters on the steps outside the Supreme Court. “We’re going to win this case. We’re going to have the right to enforce this. I have no doubt about that.”

The justices and counsel for both the petitioners and defense indicated they believed the government has a compelling interest to protect children online from porn. “I think it's common ground even with Petitioners that the state has a compelling interest in protecting minors,” Justice Amy Coney Barrett said. “I think there's a sense here that the state should be able to protect minors from some of this.”

Derek Shaffer, counsel for the petitioners, confirmed this by answering "yes, unequivocally" to Justice Neil Gorsuch's question on whether he believed there is a compelling government interest in keeping obscene materials from minors. Brian Fletcher, principal deputy solicitor general, as amicus curiae, also stated "the government has a compelling interest in protecting children from harmful sexual material online."

Free Speech Coalition v. Paxton (Case 23-50627) deals with Texas HB-1181 and its requirement that commercial pornographic websites must verify visitors' ages (see 2501130012). The Free Speech Coalition, a porn industry trade association, sued Paxton in 2023 for violating the First Amendment by placing a burden on adult access to protected speech (see 2409170012). The question at the heart of the oral argument is whether rational-basis review or strict scrutiny should be applied to the Texas law.

Several justices voiced concern that applying strict scrutiny to this law might dilute it. Justice Clarence Thomas asked Fletcher if he “think[s] that it's appropriate in this context of protecting children to compromise the strict scrutiny standard?” Barrett said that she “share[s] some of Justice Thomas' discomfort with watering down strict scrutiny.”

Justice Elena Kagan echoed their concerns but said there's risk no matter what way the court rules. It “seems to me that there are possible spillover dangers either way,” she said. “One is the spillover danger of, you relax strict scrutiny in one place and all of a sudden strict scrutiny gets relaxed in other places. The other is the spillover danger of, you treat a clearly content-based law as not requiring strict scrutiny, and all of a sudden you start seeing more content-based restrictions that don't have to satisfy strict scrutiny.”

Chief Justice John Roberts, Justice Samuel Alito and Barrett agreed that the nature of technology and access to porn has faced significant changes since the last time the court faced similar issues, as in Ashcroft v. ACLU. “The technological access to pornography, obviously, has exploded,” said Roberts.

Barrett agreed: “It's been 20 years since Ashcroft,” she said. “The iPhone was introduced in 2007 and Ashcroft was decided in 2004. I mean, kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.”

Justice Ketanji Brown Jackson, however, said that the new level of technology cuts both ways. “On the one hand, we have a new set of circumstances that allow for minors to get this material very easily, and it's ubiquitous,” she said. “But I think petitioners' argument is that the technology really heightens the risks and burdens on adults who are trying to access this material if they have to do a biometric scan or they have to do certain kinds of things that are … impinging on privacy in the way that technology now allows.”

Justice Sonia Sotomayor said strict scrutiny would apply in this case based on several precedents, she said. “The question presented is not whether this law is constitutional. The question is what level of scrutiny, correct?” she said. The Sable Communications v. FCC ruling found that ruling on indecent material required only rational basis when it came to children, but when the law applied to adults, strict scrutiny was required, she said. “For us to apply anything else would be overturning at least five precedents."

In a statement released after oral argument, Shaffer said he was grateful for the opportunity to present his case. “We agree that states have a compelling interest in protecting children from harmful sexual content online, and we urge lawmakers to consider less restrictive, more effective solutions than the approach taken by Texas,” he said. “We hope the Court will confirm the need to apply strict scrutiny to laws that burden and chill adults’ exercise of their First Amendment rights, and we look forward to the Court’s decision.”

At the Texas AG's news conference, Paxton was asked if his state is a “hostile regulator,” given its recent regulatory approach against the tech industry. “Not unless you consider protecting children hostile,” he said. “The design here is to protect children. That’s perfectly reasonable for our state to do.”

Asked about arguments that the Texas law infringes on privacy rights, Paxton said there’s a difference in considerations for adults and children. People across state lines and across the country agree that allowing children to see adult material is “inappropriate," he said.

Paxton said he would consider it a victory if the Supreme Court were to send the case back to the 5th U.S. Circuit Court of Appeals on the rational basis standard, the least rigorous option for the court to consider its constitutionality and the state’s legitimate interest. Texas wants to enforce its law, no matter how people try to define it, he said: “It doesn’t really matter, as long as we can enforce” the law.