Free Speech Coalition v. Paxton

Question Presented

Whether a court should apply rational basis review or, instead, strict scrutiny in a facial challenge to a law that requires pornography websites to verify the age of users in order to block kids from accessing pornography.

Background

This case is a high-stakes one for the future of children’s online safety and privacy and for tech regulation generally. States have passed a variety of laws to protect kids—some good, some bad—and tech companies have fought back with burn-it-all-down lawsuits that would prevent nearly any regulation in the area. Courts need a way to distinguish between unconstitutional censorship laws and constitutional privacy and safety laws.

There is a movement in legislatures across the country to pass laws that will protect kids from various online harms. These laws take many different forms. Some, like the Texas law at issue in this case, seek to label certain kinds of content as harmful and to prevent children from accessing it. Others, such as New York’s SAFE for Kids Act or the Maryland Kids Code, seek to improve privacy protections for children or to prevent websites from using harmful design practices such as sending children voluminous notifications at night or letting adult strangers connect with them. Many of these laws require companies to engage in some form of “age assurance,” which is an umbrella term for many different technologies and methods that seek to either confirm or estimate a user’s age.

Tech companies have been fighting back against these laws through lobbying and lawsuits. A core component of many of the tech companies’ lawsuits has been the allegation that the laws violate the First Amendment. They claim that any law requiring a website to treat children and adults differently will inherently prevent adults from accessing speech they have a constitutional right to access.

Many of the tech companies’ lawsuits are a specific type called a pre-enforcement facial challenge, which seeks to prevent a law from being enforced against anybody. Facial challenges are supposed to be unusual and relatively rare because they bend the rules of normal litigation: instead of a party arguing that a law is actually being enforced against them in an unconstitutional way, they argue that the law will likely be unconstitutional when enforced against anybody. In a recent case involving facial challenges, the Supreme Court remarked that “For a host of good reasons, courts usually handle constitutional claims case by case, not en masse. Claims of facial invalidity often rest on speculation about the law’s coverage and its future enforcement. And facial challenges threaten to short circuit the democratic process by preventing duly enacted laws from being implemented in constitutional ways.” For this reason, parties bringing facial challenges are supposed to construct detailed, comprehensive records that allow courts to determine whether, among a law’s hypothetical applications, the unconstitutional ones substantially outweigh the constitutional ones.

The Case

This case is a lawsuit by Free Speech Coalition—a group of pornography websites—against Ken Paxton, the Texas attorney general. Free Speech Coalition is suing to stop the enforcement of Texas’s H.B. 1181, a law that seeks to prevent kids from accessing “sexual material harmful to minors.” The law applies to websites for whom sexual material harmful to minors constitutes more than one-third of their total content, and it directs them to verify the age of all users seeking to access the content so that they can block kids’ access.

Free Speech Coalition sued to stop the enforcement of H.B. 1181, arguing that the law is facially unconstitutional. Their suit involved a variety of arguments, but the one most relevant to the Supreme Court case is the argument that H.B. 1181’s age verification requirement would impermissibly burden adults’ access to constitutionally protected speech. They argue that any attempt to ascertain the age of a user seeking to access pornography will cause the user to opt out of accessing the content because of privacy concerns. Since adult users have a right to view pornography, they argue that this means H.B. 1181 is a content-based restriction on speech that should receive strict scrutiny, which almost guarantees the law will be struck down. Neither Free Speech Coalition nor Texas focused on how H.B. 1181 would specifically chill adults’ speech. Free Speech Coalition took it as a given that any available age assurance technologies would invade users’ privacy enough to make them unwilling to view pornography, and Texas seemed to vaguely dismiss these fears as unfounded.

Free Speech Coalition’s arguments convinced the district court, which granted their injunction. Its decision relied on a suite of Supreme Court cases: Sable Communications of California, Inc. v. FCC, United States v. Playboy Entertainment Group, Reno v. ACLU, and Ashcroft v. ACLU. In these cases, laws were deemed unconstitutional when the laws, while attempting to prevent children from viewing harmful materials, also restricted adults’ access to that same content. Notably, these cases did not tell courts how to analyze whether a law actually did burden adult speech, they simply held that if a court found that a law did burden adult speech, it should receive strict scrutiny.

But Texas’s arguments won on appeal when the Fifth Circuit Court of Appeals reversed the district court. The Fifth Circuit correctly explained how Sable, Playboy, Reno, and Ashcroft did not provide guidance on how to evaluate whether H.B. 1181 burdened adult speech. So, it used its own analysis, but its analysis was cursory. It cited Ginsberg v. New York, a decision from the 60s that held it was constitutional to prevent minors from buying pornography. The Fifth Circuit ruled that H.B. 1181 should receive rational basis scrutiny because it was simply the digital-world equivalent of the New York law. But the Fifth Circuit ignored how verifying or estimating users’ ages online presents unique privacy concerns absent offline.

Free Speech Coalition filed a writ for certiorari to the Supreme Court, asking the Court to rule that the Fifth Circuit was wrong to apply rational basis review to H.B. 1181.

EPIC’s Brief

EPIC submitted a brief in this case in support of neither party. EPIC is convinced that the Fifth Circuit’s analysis was wrong and could lead to more online censorship if applied widely, but we are also concerned that the broad ruling that Free Speech Coalition is requesting could enable tech companies to overturn important kids’ privacy and safety laws that do not block anyone’s access to any content. EPIC urged the Court to use a fact- and statute-specific analytical framework that is able to distinguish between constitutional and unconstitutional uses of age assurance methods. Though Free Speech Coalition’s requested framework would likely lead to the correct result in this case, it could lead to the incorrect result in other important cases.

EPIC’s brief first explains why the outcome in this case needs to come from a detailed analysis of the law and facts at hand, not from a simple application of past precedent. The Fifth Circuit was right to note that the cases Free Speech Coalition relies upon do not automatically answer the question in the case, but it was wrong to rely solely on Ginsberg to answer the question. As the Fifth Circuit noted, Sable, Playboy, Reno, and Ashcroft had a clear holding: if a law burdens adults’ access to protected speech, it should receive strict scrutiny. But none of those cases explained how to determine whether an age assurance system is actually likely to burden speech. The Fifth Circuit’s answer—“simply apply Ginsberg”—is insufficient because that law was about kids’ access to speech, not adults’, and the offline world is different than the online one in constitutionally meaningful ways.

EPIC’s brief then explains how the Court should evaluate whether H.B. 1181 and any other law involving age assurance burdens adults’ right to access speech. EPIC explained factors that the Court should evaluate, and that the litigants must build into the record for the Court to be able to evaluate. These factors include the types of age assurance methods the law either requires or provides as an option, the law’s likely impact on privacy, how difficult the law makes it to access content, and how details about the covered websites can change the constitutional analysis.

For example, courts must first identify which age assurance methods a law actually requires. Different laws require different age assurance methods, and the specifics of those methods change the constitutional analysis. A law that requires companies to estimate users’ age based on facial recognition is different from a law that requires companies to simply ask users if they are older than 18, and they shouldn’t be lumped in together.

Once a Court understands what methods a law actually requires, it should then analyze each method’s constitutionality. EPIC’s brief walks the Court through relevant questions to answer about different laws’ privacy protections (or lack thereof) and how they can impact adults’ rights. For example, some age assurance methods require more sensitive data about a person than others. Some laws impose privacy duties on the websites and age assurance vendors, while other laws do not.

EPIC’s brief also walks through other aspects of laws involving age assurance that can potentially chill speech. Some age assurance technologies require users to take a variety of steps to prove they are adults, while others are easier. Some websites already require users to create accounts that list their birthdays, while other websites do not. These are just a few of many factors that are relevant to whether a law will burden speech by requiring age assurance.

EPIC’s brief concludes by explaining to the Court why using this fact- and statute-sensitive framework is important. The brief details how many recently enacted and proposed laws inherently rely on age assurance, and these laws vary widely. A broad ruling that age assurance burdens speech will make them all unenforceable, while a narrower ruling explaining how to determine whether they actually burden speech will enable courts to distinguish between constitutional and unconstitutional laws. EPIC’s brief also shows the Court how tech companies are able to abuse broad rulings to attack laws that are vastly different from the laws ruled unconstitutional.

Litigation Documents

(link to entire Supreme Court docket)