Courthouse Steps Oral Argument: Free Speech Coalition, Inc. v. Paxton

Free Speech Coalition, Inc. v. Paxton concerns Texas Law H.B. 1181, and what precedent should apply in considering its impact on free speech.

Passed in 2023, the law requires commercial entities, including social media platforms, "that knowingly and intentionally publish or distribute material on an Internet website... more than one-third of which is sexual material harmful to minors" to age-gate their content, and to verify the age of their users, ensuring they are 18 years of age or older.

Soon after the law passed, plaintiffs, including the Free Speech Coalition, "a trade association for the adult industry", sued, claiming the law violated their right to free speech. Drawing on a line of cases including Ashcroft v. ACLU (2004), the plaintiffs argued that since the law impacted constitutionally protected speech, strict scrutiny should be applied and the TX law failed that test. In reviewing the case, the Fifth Circuit denied that argument, instead applying a rational basis test, drawing from the precedent of Ginsburg v. New York (1968).

Thus, the Supreme Court is set to consider a relatively narrow question: 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.

Join us for a Courthouse Steps program following oral argument on January 15, 2025, where we break down and analyze how arguments went before the Court.

Featuring:

• Erik S. Jaffe, Partner, Schaerr | Jaffe LLP

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.