Justices skeptical of Fifth Circuit ruling that upheld Texas age-verification internet law

Justice Elena Kagan had a key moment in the Wednesday arguments that pushed the court toward a resolution that initially seemed elusive.

The U.S. Supreme Court justices spent more than two hours Wednesday discussing and debating with lawyers and, at times, one another over how courts should examine laws like the Texas internet age-verification law at issue under the First Amendment.

While crafting a majority opinion could be difficult, it appeared most likely that the answer to that question will be, as it has been, that strict scrutiny applies — a ruling that would make it difficult, but not impossible in this context, for Texas to defend the law when lower courts re-consider the question.

In spite of decades of internet case law applying strict scrutiny to internet speech restrictions, the U.S. Court of Appeals for the Fifth Circuit last year held that the Texas law was only subject to rational basis review — the lowest level of review — based on a 1968 decision, Ginsberg v. New York, that preceded the internet. As such, it found that the law’s requirement that websites with more than one-third of their content being “sexual material harmful to minors” verify the age of visitors was likely constitutional.

By the time the arguments in Free Speech Coalition v. Paxton ended at the Supreme Court at a little past noon, however, it appeared that most of the court was ready, as Justice Ketanji Brown Jackson put it, to “just say, wrong standard, Fifth Circuit, and send it back” for review under the proper standard. (The exception could be Justice Sam Alito, perhaps naturally, who appeared most comfortable with the lower court’s decision.)

It’s an important case, because the answer the justices give will affect similar laws in other states and could have broader consequences for how states and the federal government will be able to regulate the internet.

Wednesday’s arguments followed quickly after last week’s TikTok arguments, on which the court hasn’t issued any ruling or stay despite the rapidly approaching Sunday deadline. It was notable, though perhaps not surprising, that the two high-profile arguments so far this year both addressed the ways in which we live our lives online and how the First Amendment protects our interactions on those platforms.

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Although said in the context of a hypothetical, Justice Amy Coney Barrett appeared to summed up the general mood of the court when she told Texas Solicitor General Aaron Nielson, defending the law, “I just want to take rational basis off the table.“

That aspect of the decision seemed clear enough given that a repeated question throughout the arguments was a rather in-the-weeds query into what happens to the law in the interim if the Supreme Court vacates the Fifth Circuit’s opinion. (The real answer to that, as was suggested at points throughout the morning, is that the Supreme Court can make clear what it thinks is appropriate during that period if it wants — and if there is a majority that agrees — through its decision.)

The complicated part of what follows for the justices will be determining whether intermediate or strict scrutiny would apply — and getting a majority to agree to a specific rationale for that decision. Under strict scrutiny, courts ask whether the government is seeking to advance a compelling interest and whether the law is narrowly tailored to that interest. Under intermediate scrutiny, the government must advance an important interest and the law must be substantially related to the interest.

The court’s decision of the standard, and how far the court wants to go beyond that in describing how to apply the chosen standard in cases like this, would be key — given that everyone on Wednesday understood that Texas will still be arguing the law is constitutional regardless of the standard that applies and the Free Speech Coalition challenging the law will still be arguing it is not.

For many of the justices — as well as for Principal Deputy Solicitor General Brian Fletcher — it did appear that this was a genuine, earnest exchange in trying to accommodate the universal belief that, as Derek Shaffer acknowledged for the Free Speech Coalition, Texas does have a “compelling government interest in keeping obscene materials from minors.”

The question was where to go beyond that.

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The full scope of the discussion was conceptually presented best by Justice Elena Kagan, who pulled together concerns being presented across the bench in describing the landscape to Fletcher. Fletcher, while arguing that the Fifth Circuit got it wrong, was not a party to the case since a Texas law was only at issue, so he was able to argue for the United States more freely than happens in other cases. Earlier, he had noted both the history of cases in this area and the history of government arguments in those cases seeking different standards of review, prompting Kagan to ask him to forget all of that for a moment.

“Mr. Fletcher, I want to talk to you about life on a blank slate,“ she said in introducing her question. Acknowledging the precedents and the reasons for the government to be making certain arguments because they are the smartest ways to defend laws against challenges, she then asked him to “pretend that the precedents don't exist for a moment,” or the government’s prior arguments, for that matter.

“[M]ake it really blank,“ she told him.

Kagan then said:

It seems to me that there are possible spill-over dangers either way. One is the spill-over danger of you relax strict scrutiny in one place and all of a sudden strict scrutiny gets relaxed in other places. The other is the spill-over danger of you treat a clearly content-based law as not requiring strict scrutiny, and all of a sudden you start seeing more content-based restrictions that don't have to satisfy strict scrutiny.

And I just want to ask you, like, how you weigh those dangers and I read you as saying: “It's just got to be the case that states can do some regulation in this area.” And the question is: How does that happen? Does it happen by notching down the strict scrutiny standard, or does it happen by saying, for some reason, which we'll figure out how to articulate, this set of restrictions comes outside it?

It was a really incredible formulation of the entire oral argument up to that point, and the framing more or less controlled the rest of the argument.

After saying that both are “reasonable” approaches, Fletcher argued that strict scrutiny should apply, telling the justices, “[T]he one I'm advocating here, would be to say strict scrutiny applies a little bit differently.”

Notably, and responding to questions earlier raised by Justice Clarence Thomas and Barrett, Fletcher then added, “I would resist the idea that it's watering it down. I think it would be to say the regular strict scrutiny standard just applies differently because of the special features here” — as in, material that can be banned for some people, children, but not others, adults.

Of the other approach, he said, it concerned him about what it could do to “other places where the Court has laid down this is what it means to have a content-based law,” which traditionally invokes strict scrutiny.

The exchange had an effect — and made Nielson’s argument more difficult when he got up for his time.

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While Nielson tried to argue that Texas’s law should only be subject to rational basis review under Ginsberg, which addressed a New York law which banned sale of what the court called “girlie” magazines to minors, that argument had already lost much of its power.

Further, when Jackson got Nielson to acknowledge that, at a certain point, an age-verification law could be so restrictive of adults’ rights that it would be too burdensome, she posited to him that the case should be done.

“I thought the work of rational basis review and strict scrutiny was to evaluate whether this is too burdensome, that we say, ‘Because the adults have a certain scope of First Amendment rights, you can only impose a burden that is the least restrictive way of reaching your compelling interest,” she told him. “So we don't need a new set of principles or tests. We have a test. The test is strict scrutiny.”

The difficulty Nielson faced was most clearly seen when Barrett picked up Kagan’s formulation, told Nielson to take rational basis “off the table,” and asked him for his thoughts on Kagan’s questions.

Nielson’s only response was to say that he believed Texas’s law would still pass strict scrutiny but that he was “worried about my strip club example or any other sexually oriented businesses” that he posited would suddenly be protected additionally by a ruling here.

To that, Kagan interjected: “But that wouldn't be true necessarily if we wrote the kind of opinion that Mr. Fletcher had in mind. Right? Because then you would say: This is the kind of strict scrutiny we're talking about. This is what will pass it. You know, take us seriously.”

Although getting a majority on board with the specifics could be difficult, it appeared that Kagan was already well on her way by time the case was submitted at 12:19 p.m.

A decision is expected before the Fourth of July.