On June 27, the U.S. Supreme Court upheld a Texas law that required pornography websites to verify that users are 18 or older to ensure that children cannot access their content.
Legislators submitting this law and similar legislation in almost half of the states portray this as a commonsense solution to keep porn away from children. First Amendment advocates, however, are concerned that the government is requiring Americans to identify themselves before they can see constitutionally protected material.
The Court’s decision in Free Speech Coalition vs. Paxton surprised many, not because of its outcome, but because of the justices’ reasoning.
When a law limits free speech on the basis of its content – which the Texas law does – the Supreme Court would typically apply strict scrutiny, which means that the state would have to show there is a compelling reason for the law, and that it is narrow tailored, placing the fewest possible burdens on the speech. At the other end of the legal spectrum, supporters of the law hoped the Court would apply a far less stringent standard, essentially saying the law was rational.
Instead, the Supreme Court pursued a middle ground of “intermediate scrutiny,” acknowledging that the law infringed on free expression, but upholding it because pornography is pervasive on the internet and many children can gain access through smartphones and other devices.
In this video, Woodhull Freedom Foundation President Ricci Levy and counsel Lawrence Walters explore how the Court came to this unexpected result and the decision’s likely impact across the U.S.