This term, the Supreme Court will review the Fifth Circuit’s decision in Free Speech Coalition v. Paxton, which upheld Texas’ adult-content age-verification law. To get there, the two-judge majority waved away twenty-five years of high court precedent requiring that content-based restrictions on speech must satisfy strict scrutiny. As a result, this case provides an opportunity to reaffirm the elementary concept, most recently stated in Mallory v. Norfolk Southern Railway Co. (2023), that only the Supreme Court can overrule its own decisions. As explained in the amicus brief of the Foundation for Individual Rights and Expression (FIRE—where I am on the litigation team), Reason Foundation, and the First Amendment Lawyers Association, the Court should reverse the Fifth Circuit’s attempt to overrule a quarter-century of its precedent from below.  

First, some background. Historically, protecting children from allegedly harmful content has been a nearly irresistible justification for legislatures to restrict access to speech—be it jazz, comic books, heavy metal, video games, or sexual content. But such laws tend to place an unconstitutional burden on adults’ access to constitutionally protected speech. 

The Supreme Court is no stranger to this phenomenon. In Butler v. Michigan (1957), it held a state law that prohibited any sale of printed material “tending to the corruption of the morals of youth” violated the First Amendment because it “reduce[d] the adult population of Michigan to reading only what is fit for children.” In U.S. v. Playboy Entertainment Group, Inc. (2000), the Court applied strict scrutiny and invalidated a federal law that prohibited cable channels from airing “sexually explicit” programming between 6 am and 10 pm. And the Court applied similar reasoning to strike down early efforts to regulate the internet.

Texas’ age-verification law requires that websites with more than one-third content that is deemed “sexual material harmful to minors” verify its users are adults before granting access. If a website fails to do so, the minor’s parents can sue for damages. The law is part of a surge of constitutionally dubious age-verification laws through which state legislatures seek to regulate adult content. Since 2023, 19 states have enacted or are considering laws requiring people to verify their age to access online pornography sites. These laws place a burden on every consumer—adults included—seeking to access constitutionally protected speech. Verifying age online is quite different from simply flashing a driver’s license to someone behind a counter. It usually means handing over your government ID for a platform or verification service to copy, entering the last four digits of your Social Security number, or even submitting to biometric facial scanning.

It is incontrovertible that when a law burdens adult access to lawful speech based on its content, reviewing courts must apply strict scrutiny. That means such a statute is constitutional only if it is the least restrictive means for advancing a compelling governmental interest. Notably, two Supreme Court cases from the late 1990s and early 2000s clearly established that laws requiring age verification to access online adult content are subject to—and, in those cases, failed—strict scrutiny.

In Reno v. ACLU (1997), the Court held provisions of the Communications Decency Act prohibiting transmission of “indecent” or “offensive” material to minors—including an age-verification requirement—violated the First Amendment. Applying strict scrutiny, the Court held the CDA unconstitutional because it was not “narrowly tailored.” The Court specifically explained credit card and password verification systems were unconstitutionally burdensome on both users and websites, and it observed they did not even ensure that the user was in fact an adult. The Court also held the government had failed to explore feasible less restrictive alternatives like a system “that facilitates parental control of material coming into their homes.” Congress tried to repair the problem by enacting the Child Online Protection Act, which prohibited posting online content “harmful to minors” for “commercial purposes.” But in Ashcroft v. ACLU (2004), the Supreme Court again applied strict scrutiny and held COPA violated the First Amendment because it was more restrictive than necessary to achieve the government’s objective of protecting minors from sexual content. 

This was the on-point precedent the Fifth Circuit should have followed in Paxton. FIRE—along with the Electronic Frontier Foundation, the ACLU, TechFreedom, the Center for Democracy & Technology, and the Media Coalition Foundation—explained as much in an amicus brief filed in the Fifth Circuit. But the two-judge Paxton majority declined to apply strict scrutiny to Texas’ law. Instead, it misread Reno and Ashcroft to greenlight applying the more permissive rational basis test, under which a law survives so long as its restrictions reasonably relate to a legitimate governmental interest. The majority based its perplexing conclusion on Ginsberg v. New York (1968), a decision that involved the sale of “girlie magazines” to minors in brick-and-mortar bookstores. 

The Paxton majority admitted Ashcroft was the “best ammunition” against Texas’ law because the law is “very similar” to COPA. Yet it avoided Ashcroft’s mandate that strict scrutiny applies based on the strained theory that because the Ashcroft Court applied strict scrutiny without discussing more deferential tiers of scrutiny, the Court never actually held strict scrutiny was the appropriate standard of review. Instead, the theory goes, the Court relied on the parties’ purportedly incorrect assumption that it was. But in fact, Ashcroft squarely held that when analyzing a content-based restriction on speech like COPA, “the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.” Moreover, Justice Scalia dissented in Ashcroft because he thought the Court erred “in subjecting COPA to strict scrutiny.” 

The Paxton majority ignored that the Ashcroft Court had no reason to extensively discuss the proper standard of review because decades of Supreme Court precedent have established that when the government restricts adult access to speech to protect minors from sexually oriented material, “the standard is strict scrutiny”—as the Court reiterated in Playboy. This principle has held steadfast as technology has developed, applying to phone sex services in Sable Communications of California, Inc. v. FCC (1989), adult cable networks in Playboy, and the internet in Reno.

Judge Higginbotham dissented from the Paxton majority, explaining that the majority’s analysis of Ashcroft “ignores that the Supreme Court itself [had] previously found that strict scrutiny applied.” In Judge Higginbotham’s view, therefore, the Ashcroft Court “simply treated it as a self-evident proposition that strict scrutiny applied” because it was “clearly established” by the Court’s precedents. His dissent also challenged the majority’s attempt to distinguish Reno by pointing out that the Texas law is “strikingly similar to the CDA [the law at issue in Reno] and, in some ways, goes even further.” 

The respectfully fiery dissent echoes the rulings of the other federal courts that have reviewed similar age-verification laws over the past year or so. The Fifth Circuit is the only court that has applied the rational basis standard instead of strict scrutiny, and (unsurprisingly) it is the only court that has upheld the law under review. Conversely, courts in Arkansas, Indiana, Mississippi, and Ohio have enjoined age-verification laws supposedly designed to shield minors from sexual content online. 

Last month, in Free Speech Coalition v. Knudsen (Oct. 22, 2024), a federal district court held in denying a motion to dismiss a challenge to Montana’s age-verification law that the law must satisfy strict scrutiny because it imposes content-based burdens on speech. Rejecting “the anomalous decision in Paxton,” the court asserted that identifying the proper standard of review “is rather straightforward.” And earlier this year, in Free Speech Coalition v. Rokita (2024), an Indiana federal district court expressed similar skepticism of the Paxton decision, noting that, “despite no intervening change in Supreme Court precedent,” the Fifth Circuit determined the Reno and Ashcroft precedents “were not binding.” As the court explained, strict scrutiny must apply to Indiana’s age-verification law because it—like Texas’ law—would apply even to “adults attempting to access material perfectly appropriate for minors,” and “even when the majority of a website contains entirely acceptable, and constitutionally protected, material.”

Before the Fifth Circuit’s Paxton decision, other federal district courts uniformly deemed strict scrutiny the appropriate level of review for similar age-verification laws concerning access to social media (and held they likely could not survive). In NetChoice, LLC v. Griffin (2023), a federal district court noted that Arkansas’ age-verification law must satisfy strict scrutiny, but held it couldn’t even survive intermediate scrutiny because it was “likely to unduly burden adult and minor access to constitutionally protected speech.” In NetChoice, LLC v. Yost (2024), an Ohio federal district court enjoined the state’s law that required online platforms to obtain parental consent or deny access to anyone under the age of 16 because the law violated Ohioan minors’ rights. In NetChoice, LLC v. Fitch (2024), a federal district court in Mississippi applied strict scrutiny to hold the state’s age-verification law violated the First Amendment as “either overinclusive or underinclusive, or both” and that “a substantial number, if not all,” of the law’s “applications are unconstitutional judged in relation to its legitimate sweep.” And, of course, the federal district court in Paxton that the Fifth Circuit reversed similarly held Texas’ age-verification law unconstitutional. 

These rulings underscore that when lower courts simply ignore First Amendment standards they dislike, they imperil constitutionally guaranteed free speech rights. Ensuring minors’ safety is an important and worthy objective, but the means of accomplishing this goal must be constitutional. If the Supreme Court allows the Fifth Circuit’s rejection of settled precedent to stand, lawmakers and lower courts will declare open season on previously established law, resulting in a jumble of inconsistent protections for First Amendment rights across the country. By simply following its straightforward internet-speech precedents and requiring that Texas’ age-verification law satisfy strict scrutiny, the Court can avoid this constitutional patchwork and safeguard adult free speech rights as the First Amendment requires.

This post is part of a two-part series debating this term's Supreme Court case, Free Speech Coalition v. Paxton. Read the other side.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].