The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Big Free Speech Takeaway from Today's Free Speech Coalition v. Paxton Porn Age Verification Decision
"Strict scrutiny is unforgiving because it is the standard for reviewing the direct targeting of fully protected speech.... [A]s a practical matter, it is fatal in fact absent truly extraordinary circumstances."
Today's majority upholds an age verification requirement for online porn, which is of course the more speech-restrictive option in this case. And it upholds the law by concluding that the "strict scrutiny" test—which the Court generally uses to evaluate content-based restrictions on speech that falls outside the First Amendment exceptions—doesn't apply to such age verification rules. (More on that later, but basically the Court concludes that the long-recognized First Amendment exception for distributing to minors material that's obscene as to them also justifies some burdens on adults, when the burdens are limited to age verification requirements.)
But in the process, the majority reaffirms just how demanding the "strict scrutiny" test is in the wide range of situations where it does apply. Indeed, the majority's definition of strict scrutiny appears to be slightly narrower but slightly (or maybe even significantly) stronger than the dissent's. As a First Amendment lawyer, I'll likely be citing the majority's passage a lot in cases where I'm challenging content-based speech restrictions:
Strict scrutiny—which requires a restriction to be the least restrictive means of achieving a compelling governmental interest—is "the most demanding test known to constitutional law." In the First Amendment context, we have held only once that a law triggered but satisfied strict scrutiny—to uphold a federal statute that prohibited knowingly providing material support to a foreign terrorist organization. See Holder v. Humanitarian Law Project (2010). That case involved an unusual application of strict scrutiny, since our analysis relied on the "deference" due to the Executive's "evaluation of the facts" in the context of "national security and foreign affairs."
{In Williams-Yulee v. Florida Bar (2015), a bare majority held that a ban on the personal solicitation of campaign donations by candidates for judicial office survived strict scrutiny. But, only four Members of the majority thought that the statute triggered strict scrutiny to begin with. The fifth Member, Justice Ginsburg, concluded that strict scrutiny did not apply and that States enjoy "substantial latitude … to enact campaign-finance rules geared to judicial elections."}
Strict scrutiny is unforgiving because it is the standard for reviewing the direct targeting of fully protected speech. Strict scrutiny is designed to enforce "the fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content." It succeeds in that purpose if and only if, as a practical matter, it is fatal in fact absent truly extraordinary circumstances….
The dissent, meantime, took pains to stress that strict scrutiny could sometimes be satisfied:
[Even in cases such as this], we apply strict scrutiny, a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content…. [An age verification requirement for porn] might well pass the strict-scrutiny test, hard as it usually is to do so…. Review [under strict scrutiny] should not be the horror show for Texas and other States that the majority maintains…. [C]arefully drawn age verification laws stand a real chance of surviving strict scrutiny.
That, I won't be citing in my First Amendment arguments (except to note that the majority rejected that approach).
