Professor Ortiz Gives Talk to ACS on Free Speech Coalition v. Paxton
The American Constitution Society (ACS) hosted Professor Daniel Ortiz for a presentation on Free Speech Coalition v. Paxton on Tuesday, October 28. This was the first of a series of talks hosted by ACS on decisions from the most recent Supreme Court term.
Free Speech Coalition v. Paxton, which was decided in January, concerned the level of scrutiny to be applied to a law that requires users to verify their age to access online pornography. The problem is that such laws both prevent minors from accessing pornography and burden adults’ ability to do so, as they must present identification. Under Supreme Court precedent, the First Amendment protects adults’ access to sexually explicit material, but not that of children. In 2023, Texas enacted a law requiring age verification, and the Free Speech Coalition, a trade association for the adult entertainment industry, sued. A District Court applied strict scrutiny due to the law’s burden on adults; although it found the state’s interest compelling, it struck down the law as not narrowly tailored. The Fifth Circuit reversed, holding that rational basis review applies because the law’s effect on adults was only incidental.
The Supreme Court split 6-3 on partisan lines. The majority opinion, written by Justice Clarence Thomas, disagreed with both lower courts. Where a law targets unprotected speech (suggesting rational basis review) but has spillover effects on protected speech (suggesting strict scrutiny), the Court chose to “split the baby” and apply intermediate scrutiny. Everyone agrees that protecting minors from pornography is at least an important state purpose, and the Court found the law did not burden substantially more speech than necessary, so it upheld the law.
The dissent, written by Justice Elena Kagan, accused the majority of results-oriented reasoning. It argued that strict scrutiny should apply and would have remanded in order to let the lower courts apply that standard. Surprisingly, the dissent suggested, though it would not explicitly have held so, that in the internet context some forms of age verification might actually pass strict scrutiny provided they are not overly costly for providers or burdensome on adults’ privacy.
Professor Ortiz noted several interesting features of the case. During oral argument, Justice Thomas and Justice Amy Coney Barrett reacted quite negatively to the suggestion that the Texas law might survive strict scrutiny, which Justice Barrett termed “watering down strict scrutiny.” Ordinarily, one would think that a legal standard either is or isn’t the right tool for the fact pattern—not worry that the facts will somehow change the standard. Professor Ortiz suggested that the Justices want to protect strict scrutiny as a powerful tool to “clobber” states, saying “sometimes you need the bazooka” to explode state law. Also, he observed that the case raises the question how far intermediate scrutiny will extend in future cases, that the Court indicated a desire to address technological change, and that the conservative majority showed concern about traditional social values and gestured at history-and-tradition analysis.
Responding to questions, Professor Ortiz stated that the Justices could have been thinking about applications of free speech law to the upcoming conversion therapy case, Chiles v. Salazar, or to purported hate speech. He also said that although the Court may roll back free speech protection somewhat, no one, even a conservative or originalist, wants to return to a pre-Warren Court era when one could ban Lady Chatterley’s Lover or Ulysses. Professor Anastasia Iliopoulou, visiting from France to teach a short course on European privacy law, compared Free Speech Coalition to a similar case at the Court of Justice of the European Union. The European case is being argued mainly in terms of privacy, rather than free speech, reflecting the different law and values of the two jurisdictions—but Professor Ortiz said the dissent may have been leaning toward the European concerns.
A question implicit throughout the talk was why the case split on partisan lines at all. To be sure, partisan splits at the Court are no surprise, and part of the answer is that conservatives are relatively more hostile to pornography and liberals relatively more concerned with privacy. But conservative justices who support the law could have adopted the dissent’s approach of upholding it under strict scrutiny.
Another answer might involve unpacking Professor Ortiz’s observation about not watering down strict scrutiny. The Supreme Court can’t strike down every law it wants to; usually, they can only say that strict scrutiny applies and rely on the lower courts to do it for them. The more precedent there is for laws surviving strict scrutiny, the easier it is for lower courts to uphold a law contrary to the Court’s preference. A faction that controls the Supreme Court would seem to have an interest in keeping strict scrutiny “fatal in fact,” whereas a minority on the Court might prefer to give more space for lower courts to act contrary to their opponents’ wishes.
The next talk in ACS’s series will be hosted on Thursday, November 13, and will feature Professor Micah Schwartzman on religious liberties.
