NCAC has partnered with the sexual education and wellness platform O.school in filing an amicus brief with the United States Supreme Court in Free Speech Coalition v. Paxton, a lawsuit challenging the constitutionality of Texas HB 1181. This statute is part of a growing legislative trend in which states require websites that publish material deemed “harmful to minors” to verify the age of users before granting them access to content on their site.
HB 1181 requires that websites must engage in age verification if more than one-third of the site is “sexual material harmful to minors,” broadly defined by what the average person would find obscene with respect to minors. Age verification is the process by which the minimum age of a user is confirmed–usually by requiring the presentation of personal information such as a government-issued ID, credit card, or biometric data–in order to gain access to certain materials. “Harmful to minors” language has the potential to capture a wide swath of content, including sex education materials, discussions of sexual identity, and depictions of sexual activity that would not be obscene as to adults or older minors. The law also demands that these websites display warnings on their landing pages, cautioning about the potential health risks associated with viewing pornography.
Before the law went into effect, Free Speech Coalition brought suit, arguing that HB 1181 violates the First Amendment and conflicts with Section 230 of the Communications Decency Act. The district court issued a preliminary injunction, finding that the age-verification and warning requirements fail “strict scrutiny,” the most demanding bar that the government must meet in order to comply with the First Amendment. In other words, when a law targets the content of speech (by singling out “sexual” content), as it does here, the government must show that it has a compelling interest in what the law is trying to address and it has done so in the way that has burdened the least speech. The government did not meet this test.
On appeal, the Fifth Circuit agreed that the health warning requirements violate the First Amendment, but unfortunately reversed the injunction against the age-verification requirements, disagreeing with the lower court that the government has to meet strict scrutiny. Free Speech Coalition appealed, and the United States Supreme Court took on the case to decide the proper standard for reviewing the law under the First Amendment.
NCAC has a long history of advocating for the First Amendment rights of minors. The amicus brief argues that minors are not monoliths and Texas’ law fails to account for the fact that speech that may be harmful to a five-year-old might be acceptable–or even essential–to a person of seventeen. We argue that the correct standard is strict scrutiny because HB 1181 places content-based restrictions on speech by discriminating based on whether the content is “sexual” in nature. The law burdens far more speech than necessary to protect minors from actual obscenity because it treats all minors the same regardless of age, imposes vague standards for evaluating what is considered “harmful to minors,” and ignores multiple alternatives that are far less speech-restrictive.
Read the full Amicus Brief here:Click here for a full-screen view:
Update 6/27: The Supreme Court majority disagreed with our position, analyzing HB 1181 under “intermediate” scrutiny because the law only “incidentally” burdens the First Amendment rights of adults. Under this relaxed analysis, the government has much more leeway to regulate speech. The Court’s opinion overlooks the diverse array of speech captured by the law and fails to meaningfully consider the rights of older minors. In addition, the Court discounts the chill on speech that will result from the law’s surveillance mandate that requires everyone, regardless of age, to self-identify in order to access materials on covered sites. The opinion does, however, reaffirm that the proper test for material that is obscene to minors has not changed and remains a high bar for the Government to clear. In deciding whether speech is “harmful to minors,” states must still consider the overall value to minors of the material in question.