WASHINGTON, D.C. – In a hearing that ran over two hours yesterday, the U.S. Supreme Court heard oral arguments in Free Speech Coalition v. Paxton, a case challenging the constitutionality of Texas’s HB 1181, the state’s law websites to adopt age-verification protocols if over one-third of the site’s content is “sexual material harmful to minors.”

HB 1181 also requires covered websites to publish “health warnings,” but that portion of the law remains enjoined from enforcement and was not before the court yesterday.

Applying strict scrutiny, in August, 2023 U.S. District Judge David Ezra held that HB 1181 is “not narrowly tailored” and is “severely underinclusive,” among other shortcomings. In March of last year, the Fifth Circuit vacated in part the preliminary injunction issued by Ezra, lifting the injunction as to enforcement of the law’s age-verification component, while leaving the injunction in place with respect to its labeling requirements.

The chief issue facing the Court yesterday was whether the Fifth Circuit Court of Appeals applied the correct standard of scrutiny in overturning the district court’s preliminary injunction blocking enforcement of the law while litigation on the law’s merits continues. The plaintiffs also asked the Supreme Court to find the law was unlikely to survive review under strict scrutiny and reinstall the preliminary injunction issued by the district court.

While it is always tricky to predict where the Justices are leaning based on their comments and questions at oral argument, based on a transcript of the hearing, the court seemed potentially divided both as to whether the Fifth Circuit applied the wrong standard of review and whether HB 1181 could survive strict scrutiny, if applied.

While the court’s liberal justices appeared to believe the Fifth Circuit had erred, several of the court’s conservatives appeared to be open to applying the lower “rational basis” standard of review. Several justices also homed in on the way the internet and its associated technologies have changed since the Supreme Court heard the landmark case, Ashcroft v. Free Speech Coalition.

Representing the petitioners, attorney Derek Shaffer told the court that the Fifth Circuit’s application of the rational basis standard was an “aberrant holding defies this Court’s consistent precedent.”

“This Court should begin by confirming that strict scrutiny continues to apply to any such content-based burden on websites and their adult users,” Shaffer said. “Notably, Texas’s law is even more problematic than its failed federal predecessors. It applies to entire websites depending on whether one-third of their content is deemed inappropriate for minors. It also brands websites with stigmatizing, unscientific so-called ‘health warnings’ that, despite being enjoined, evidence… Texas’s intention to deter adults, even assuming they’ve cleared the age-verification hurdle, from accessing protected speech.”

Shaffer added that to “abandon strict scrutiny here… could open the door to an emerging wave of regulations that imperil free speech online.”

From the conclusion strict scrutiny should apply, Shaffer asserted, “this Court can readily restore the preliminary injunction given Petitioners’ likelihood of success under strict scrutiny.”

“The district court found that this law’s age verification provisions are wildly under-inclusive and unduly chilling,” Shaffer said. “At the same time, content filtering today affords at least one alternative that is both less restrictive and more efficacious. Ashcroft teaches that a preliminary injunction should stand in precisely these circumstances.”

Justice Amy Coney Barrett asked Shaffer to “explain to me why the barrier is different online than in a brick-and-mortar setting?” Noting that many of the petitioners’ concerns on age-verification regimes are “are driven by privacy concerns, which are really a feature of the Internet,” Barrett added that if “you go into the bookstore in Ginsberg or if you go to a movie theater that displays pornographic movies, you have to show age verification.”

“So, explain to me why this is so uniquely burdensome here when it’s not been in the real-world context,” Barrett demanded.

“(T)he answer is you’re creating a permanent record on the Internet when you provide this information that is being collected,” Shaffer responded. “It is a target for hackers. It is something that is different from just flashing an ID in physical space.”

Barrett also questioned whether changes in technology ought to change the court’s calculus on the question of whether content filtering is an effective means of achieving the government’s compelling interest in protecting minors.

“In Ashcroft II the Court… expressed anxiety about the fact that technology moves so fast that the five years between the district court findings in that case and the case being at the Supreme Court, you know, that technology may have moved beyond the record at that point,” Barrett said. “It’s been 20 years since Ashcroft. 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. It’s – let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with. So… I think that the explosion of addiction in – to online porn has shown that content filtering isn’t working.”

Justice Clarence Thomas echoed Barrett’s observation on the changes in technology, noting that “the world of Ashcroft was a world of dial-up Internet.”

Shaffer said that while he wasn’t “trying to lay down bright-line rules or to suggest that technology is never a reason when the Court is revisiting a precedent,” but asserted a debate on which standard of scrutiny should be applied isn’t the time for the court to make that decision.

“I think if you were going to take another look at Ashcroft based on a party coming in and making a pitch to overrule it and the other line of precedent that it stands on, then technological change might be relevant,” Shaffer said. “Our submission here is just that you don’t need to do that.”

Brian Fletcher, the deputy solicitor general who argued on behalf of the Biden Administration, agreed with Shaffer that the Fifth Circuit applied the wrong standard of scrutiny, but not on whether the court ought to reinstate the preliminary injunction issued by the district court.

“We agree with Petitioners that the Fifth Circuit was wrong to apply only rational basis review because Texas’s law imposes a content-based burden on speech that is protected for adults,” Fletcher said. “Critically, though, that should not prevent Congress or the states from restricting the distribution of pornography to children online, just as states have traditionally done it in brick-and-mortar stores and theaters.”

Texas Solicitor General Aaron Nielson, defending the law on behalf of the state, asserted that the Fifth Circuit applied the correct standard of review in staying the injunction issued by the district court.

“Petitioners don’t dispute that their websites are not meant for children, that they harm children, and that children are watching,” Nielson said. “The Court faced the same situation with brick-and-mortar stores and applied rational basis to a law limiting adult content to adults. This case is a digital version of Ginsberg.”

Justice Sonia Sotomayor observed that most of her colleagues’ questions seemed to address whether HB 1181 could satisfy strict scrutiny, rather than the primary question before the court, which was whether the Fifth Circuit applied the correct standard.

“The question presented is not whether this law… is constitutional. The question is what level of scrutiny, correct?” Sotomayor asked Shaffer.

When Shaffer confirmed, Sotomayor followed up by confirming that a question posed by Justice Neil Gorsuch was “was what type of scrutiny should we apply when content can be obscene as to children but not obscene as to adults, correct?”

After Shaffer confirmed this understanding, Sotomayor noted that “we have at least five precedents that have answered that question directly.”

Omitting Shaffer’s responses, each of which confirmed Sotomayor’s follow-up questions, Sotomayor’s comments were as follows:

“So, the answer to Justice Gorsuch is let’s treat every medium under the scrutiny that applies to the people affected, correct,” Sotomayor continued. “So that’s strict scrutiny? For us to apply anything else would be overturning at least five precedents?”

“That’s my count, as well,” Shaffer responded.

According to a report from SCOTUSblog contributor Amy Howe, a decision in the case is “expected by late June or early July.”

Again, it’s tricky to anticipate how the court or individual justices will rule based on what they say at oral arguments. Still, we shouldn’t be surprised if a divided Supreme Court either holds that the Fifth Circuit correctly applied the rational basis test or finds the Fifth Circuit should have applied strict scrutiny, but the stay of the district court’s preliminary injunction should stand anyway, allowing Texas to continue enforcing HB 1181 even as litigation in the case continues.

Supreme Court Justices photo by Fred Schilling, Collection of the Supreme Court of the United States