The case, Free Speech Coalition v. Paxton, centers on First Amendment concerns, as petitioners representing the pornography industry say the law infringes on the privacy rights of adults due to the requirement to input either government IDs or financial information to access pornographic websites in the Lone Star State. During oral arguments, several conservative justices signaled skepticism about arguments from the adult entertainment industry that the law unduly burdens free speech.

Chief Justice John Roberts emphasized that internet pornography has evolved since earlier rulings protected sexually explicit content. “The nature of the pornography, I think, has also changed in those 35 years,” Roberts said. …

Debate over judicial standards

The case hinges on whether the Texas law should face strict scrutiny, the highest level of judicial review upon which most laws fall, or a less rigorous rational-basis test. …

Justice Sonia Sotomayor was one of the few justices who appeared sympathetic to the adult entertainment industry’s argument. She noted that the Supreme Court has historically applied strict scrutiny in cases involving speech regulation. …

Although Justice Amy Coney Barrett appeared skeptical of the pornography industry’s arguments to strike down Texas’s law, she also acknowledged that she shared similar concerns as Sotomayor and Justice Brett Kavanaugh, who questioned how they could rule in favor of the law while avoiding changing the standard of strict scrutiny. …

Justices question effectiveness of alternatives

Justice Clarence Thomas probed deeper, asking whether age-verification requirements could ever be constitutional. Derek Shaffer, representing the adult entertainment industry, avoided the question, instead focusing on how the law allegedly infringes on adults’ access to protected speech, while also suggesting that content-filtering personal devices should be sufficient for families to protect their children from online smut.

However, Barrett expressed skepticism about the effectiveness of content filtering as an alternative to state regulation. …

Balancing interests

A federal judge in Texas blocked the law using strict scrutiny, the toughest legal test, which requires a law to serve a critical government purpose and be very narrowly focused. However, an appeals court overturned that decision, saying the law should face the much easier rational-basis test, which only needs a legitimate state purpose and is usually upheld.

Supreme Court justices now have to decide which test applies and may either send the case back to the lower court or decide the issue themselves to resolve it more quickly. …

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(Excerpt from Washington Examiner. Photo Credit: Ian Hutchinson on Unsplash)