Concerned Women for America’s Executive Vice President, Annabelle Rutledge, delivered the following remarks in support of children and Texas on the day of oral arguments for Free Speech Coalition v. Paxton at the U.S. Supreme Court:
CWA AR Statement Free Speech Coalition v Paxton
Overview of the Case
Free Speech Coalition v. Paxton
- It is a challenge to the constitutionality of Texas’ H.B. 1181, which requires age verification for pornography websites to protect minors from obscenity online.
- The law requires pornographic websites that “knowingly and intentionally publish or distribute material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors” to “use reasonable age verification methods” to verify the customer “is 18 years of age or older.”
- “Sexual material harmful to minors” is defined based on the Supreme Court’s test for obscenity in Miller v. California.
- A big issue is the level of scrutiny the Court is to apply. The Free Speech Coalition (a trade association for pornographic websites) wants the highest level for the state’s action (strict scrutiny). Texas wants the lowest (rational basis) because the law regulates a category of speech (obscenity) that is not protected by the First Amendment.
- Procedurally, the district court applied strict scrutiny, and the Fifth Circuit reversed and applied rational basis, ruling in Texas’s favor. So, the law has been in effect since September 19, 2023. The Supreme Court will determine if the Fifth Circuit erred.
- The other side argues that the law is overinclusive because it applies to all the content on the websites, much of which is not obscene for adults.
- They also say it is underinclusive because it leaves search engines and other websites unaffected because the amount of material will never meet one-third of the content threshold.
- They say there are other “least restrictive means” which is the requirement under “strict scrutiny.”
- But the law is targeted (only applies to minors) and reasonable (simple age verification), and even if the highest test were to be applied, Texas has more than a compelling case to take action to protect children from this dangerous and harmful material.