SCOTUS Takes on Adult Website First Amendment Claims

Communicating triple-X information deserves what level of protection?

Today (Jan. 15), the US Supreme Court will hear arguments about a Texas law limiting access to websites that host sexually explicit content. The ACLU has challenged the law as a violation of the First Amendment rights of Texans. The case is getting a lot of attention as a potential new landmark precedent in the war on pornography waged by some conservatives. It has pitted them against free speech advocates (and adult website proprietors) who are allied against the law and lax protections against government speech restrictions, whatever the subject matter.

Restricting access to minors from the named content is the most sympathetic case for limitations on commercial pornographic websites. The Texas law requires commercial entities that publish or distribute pornography, called “sexual material harmful to minors,” to use “reasonable age verification methods.” If an adult website detects entry to its servers from a Texas IP address, it needs to verify the visitor is 18 or older before allowing access to explicit content. Another challenged provision mandates the display of the following message on all pages of the website, in “14-point font or larger”:

“TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.

“TEXAS HEALTH AND HUMAN SERVICES WARNING: Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.

“TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography increases the demand for prostitution, child exploitation, and child pornography.”

Before the law could take effect, opponents filed a federal court challenge to stop it, and they won when Ronald Reagan appointee Judge David Alan Ezra granted an injunction. As Amy Howe at SCOTUSblog put it, “As a practical matter, Ezra concluded, H.B. 1181 is identical to a federal law, the Child Online Protection Act, that the Supreme Court deemed likely unconstitutional in its 2004 decision in Ashcroft v. ACLU.” He said Texas might successfully get the Supreme Court to change the precedent, but the current one is clear, forbidding the verification restrictions.

Texas appealed to the Fifth Circuit Court of Appeals, the nation’s most ideologically conservative bench and a fountainhead for recent Supreme Court precedents, which overturned Ezra’s ruling, allowing the law to be applied. They did so by invoking the weakest standard of review to the law, called “rational basis.” This test permits laws rationally related to a legitimate state interest. It’s the most permissive and polar opposite of the “strict scrutiny” standard Ezra applied and is traditionally used in free speech cases. To pass muster, under this standard, the government must show a compelling state interest behind the challenged law and that it was narrowly tailored to achieve its result.

Now, the fight at the Supreme Court is not over whether the law itself is unconstitutional but what standard of review should govern the Court when deciding that case. The Court took the case to resolve whether the Fifth Circuit erred by applying rational basis instead of strict scrutiny, “as this Court and other circuits have consistently done.” This case has teed up another hot-button social issue for the Court to establish a new landmark ruling if five or more Justices agree.