Ep. 245: The Supreme Court's decision in Free Speech Coalition v. Paxton

Summary

Podcast Summary: So to Speak: The Free Speech Podcast
Episode: Ep. 245 - The Supreme Court's Decision in Free Speech Coalition v. Paxton
Release Date: June 27, 2025

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Introduction

In Episode 245 of So to Speak: The Free Speech Podcast, hosted by FIRE's Nico Perino, the discussion centers around the Supreme Court's landmark decision in Free Speech Coalition v. Paxton. This episode delves deep into the implications of the Texas law HB 1181, which mandates age verification for accessing adult material online. Joined by FIRE colleagues Ronnie London, Bob Korn-Revere, and Will Creely, the conversation unpacks the legal intricacies, constitutional challenges, and broader societal impacts of this decision.

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Background on Free Speech Coalition v. Paxton

Free Speech Coalition v. Paxton addresses the constitutionality of Texas's HB 1181, a law aimed at preventing minors from accessing adult material online. The law imposes strict age verification requirements and mandates specific warnings on websites hosting a significant amount of such content.

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Details of Texas Law HB 1181

Will Creely explains the two primary components of HB 1181:

1. Age Verification Requirement ([01:51]):

   • Mandate: Websites with more than 33% adult material harmful to minors must verify users are 18 or older.
   • Methods: Digital identification, government-based ID, or commercially reasonable methods using public or private transactional data.
   • Privacy Clause: Websites are prohibited from retaining identifying information but face no restrictions on transmission or monitoring of this data.

2. Mandatory Warnings ([01:51]):

   • Content: Statements such as "pornography is potentially biologically addictive" and "weakens brain function."
   • Attribution: Warnings must cite the Texas Health and Human Services Commission, despite no official findings supporting these claims.

Will critiques the law's enforcement mechanisms, highlighting the absence of monitoring or reporting requirements and the broad application of age verification.

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Lower Courts' Rulings

Initially, the District Court and the Fifth Circuit enjoined HB 1181 on First Amendment grounds, deeming the age verification a content-based burden on protected adult speech and the warnings as compelled speech. They applied strict scrutiny, asserting that the state had alternative means to protect minors without infringing on constitutionally protected speech.

Will summarizes the Fifth Circuit's stance:

"The Fifth Circuit applied rational basis review, essentially overturning 25+ years of Supreme Court precedent that mandates strict scrutiny for content-based speech restrictions."
[05:30] Will Creely

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Supreme Court Decision

The Supreme Court overturned the Fifth Circuit's ruling, deeming HB 1181 constitutional. The Court introduced intermediate scrutiny instead of the traditionally applied strict scrutiny for content-based speech regulations. Justice Thomas, writing for the majority, argued that the law non-discriminatorily regulated speech by imposing age verification, thus not warranting the highest level of judicial scrutiny.

Key Points from the Decision:

• New Category of Speech: Introduced the concept of "partially protected speech," allowing certain burdens on adult access to material deemed harmful to minors.
• Rational Basis Overruled: Established that rational basis was insufficient, opting for a middle-ground standard.
• Distinction from Obscenity: Clarified that while obscenity remains strictly scrutinized, material harmful to minors occupies an intermediate category.

Ronnie London elaborates:

"Justice Thomas managed to reinterpret existing precedents, asserting that age verification imposes an intermediate level of scrutiny, thus validating the Texas law."
[07:43] Ronnie London

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Implications and Analysis

a. New Standard of Scrutiny

The Court's adoption of intermediate scrutiny marks a significant shift in First Amendment jurisprudence, particularly for content-based regulations. This departure from strict scrutiny undermines established protections for adult speech.

Will Creely expresses concern:

"This disaggregation of expressive activity creates a dangerous new category, where speech is only protected once age verification is satisfied."
[13:11] Will Creely

b. Burden on Constitutionally Protected Speech

The law imposes an unconstitutional burden on adult speech, requiring individuals to disclose personal information to access protected content. This challenges the foundational principle of anonymous speech protected under the First Amendment.

Ronnie London highlights:

"One of the bedrock protections under the First Amendment is the protection for anonymous speech... Now, by law, individuals must identify themselves to access protected speech."
[20:59] Ronnie London

c. Privacy Concerns

Mandatory age verification compromises user privacy, exposing individuals to potential data breaches. The recent incidents of data breaches at major tech companies exacerbate these fears, making the mandated verification process even more problematic.

Ronnie London notes:

"Surveys find up to 70% of the population opposes providing identification to participate in online speech."
[21:01] Ronnie London

d. Enforcement and Practical Issues

Enforcement of HB 1181 poses significant challenges, including high costs for compliance and the risk of driving traffic to unregulated or international sites. Small websites and individual content creators may find it financially prohibitive to implement the necessary age verification mechanisms.

Will Creely points out:

"With verification costs soaring, many smaller entities might shut down rather than comply, stifling diverse voices online."
[34:58] Will Creely

e. Potential Expansion to Other Areas

There is apprehension that this ruling could set a precedent for broader restrictions, potentially affecting social media platforms, public libraries, and other online content providers. This could lead to a fragmented landscape where state laws vary, impeding interstate commerce and free expression.

Bob Korn-Revere warns:

"This decision is a foot in the door for expanding age verification mandates to other areas, undermining foundational First Amendment protections."
[34:22] Bob Korn-Revere

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Critical Perspectives

The episode features robust criticism of the Supreme Court's decision:

• Judicial Overreach: Critics argue that the Court overstepped by creating a new scrutiny standard, disregarding established precedent.
• Ineffectiveness of the Law: Practical implementation issues, such as high costs and ineffective enforcement, render HB 1181 counterproductive.
• Chilling Effect on Speech: The requirement to disclose identity deters individuals from accessing legitimate, constitutionally protected speech, infringing on personal freedoms.

Ronnie London summarizes the dissent's view:

"Justice Kagan's dissent aptly points out that the majority's reasoning effectively reinterprets decades of First Amendment protections, allowing undue burdens on adult speech."
[13:28] Ronnie London

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Conclusion

Episode 245 of So to Speak: The Free Speech Podcast provides a comprehensive examination of the Supreme Court's decision in Free Speech Coalition v. Paxton. The discussion underscores the ruling's profound impact on First Amendment protections, user privacy, and the future landscape of online speech regulation. With FIRE's team critically analyzing the decision, listeners gain valuable insights into the evolving challenges surrounding free expression in the digital age.

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Notable Quotes:

• Will Creely [01:51]:
  "It requires you to verify that somebody coming to your website to access that material is 18 or over."

• Ronnie London [07:43]:
  "The Court in this case did was reinterpret those decisions and say, well, maybe not... that applies to speech bans."

• Bob Korn-Revere [09:34]:
  "It just seems like a goal-oriented opinion in a variety of ways."

• Will Creely [13:11]:
  "This disaggregation of expressive activity creates a dangerous new category."

• Ronnie London [20:59]:
  "A lot of pushback against the idea that you have to reveal who you are to engage in speech."

• Will Creely [34:58]:
  "Individual performers and artists can have their own site and they aren't necessarily going to be in a position to purchase that kind of age verification."

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Additional Information:

For those interested in deeper engagement and future discussions, FIRE hosts monthly member calls where listeners can pose questions directly. Access is available through FIRE's membership portal at fire.org. Additionally, the full conversation from this episode will be available on the So to Speak podcast feed and Substack in a few hours.

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Join the Conversation:

If you found this episode insightful and wish to participate in future discussions or support FIRE's mission, consider becoming a member here. Your support helps defend individual rights and free expression across various platforms and mediums.

Transcript

[Ronnie London]

Somewhere I read of the freedom of speech.

[Nico Perino]

You're listening to so to Speak, the free speech podcast brought to you by fire, the foundation for individual rights and expression. I guess we're calling this a new series, FIRE Reacts, but it's in partnership with so to Speak, the free Speech podcast. Those of you who listen to the podcast should know me. I'm the host, Nico Perino. I'm fire's executive vice president. We thought it might be a good idea on this last day of the Supreme Court term in which we got a First Amendment decision to have Some of my FIRE colleagues. Colleagues joined me in a conversation about that decision. The case is Free Speech Coalition v. Paxton and it deals with a Texas law that requires age verification in order to access adult material online. The Supreme Court said that it met the constitutional bar, that the law is constitutional. And so we are going to discuss that here today. Joining me is Ronnie London fires general counsel Bob Korn Revere fires chief counsel and Will Creely fires legal director. Will, let's start with you before we open it up to Ronnie and Bob for their opinions on the decision and we open it up to the broader webinar for their questions about the case. Can you tell us how this case found its way into the courts and how it wound up at the Supreme Court?

[Will Creely]

Yeah, Nico, I can't. I would say it's a joy to be here, but it's not. I wish we were here under different circumstances, but yeah, let me tell you the. Tell you the tale. So Texas passes this law, HB 1181 back in June of 23 and it was quickly challenged in August of that year. District court and joins it on first Amendment grounds. Let me explain what the law did had two main parts had an age verification requirement which is what was before the court in some, some sense today. We'll get to that.

[Nico Perino]

And that means. That means you have to turn over some sort of ID right.

[Will Creely]

It requires you to before. Requires everybody before you attempt to access. I'm going to quote from it. The websites that have more than 33% material that is defined as sexual material harmful to minors. We'll get to that in a second too. You have to verify that somebody coming to your website to access that material is 18 or over. You can do that by either digital identification, government based identification, or a commercially reasonable method that relies on public or private transactional data. The website is required not to retain any identifying information of the individual. But as Free Speech Coalition pointed out in the briefing, transmission of that information is not prohibited and there's no monitoring or reporting requirement for what you do with that information. Then there's another component of the law which does not figure into these proceedings. Thank goodness it was so blatantly unconstitutional that both enjoined by the district court and the fifth Circuit said that's fine, but this was kind of get a kick out of this requirement. It mandated that websites that met this definition that had this amount of material on it would have to put up on its landing page a warning in 14 point font or larger, a series of statements. For example, pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses and weakens brain function. And these warnings were required to be put on the websites and were attributed to the Texas Health and Human Services Commission, even though the commission had not in fact made those findings or announcements. District court considering both of these components of the law enjoins them, says that age verification is a content based burden on adult access to speech that's protected for adults. Applied strict scrutiny, says the state has other ways of achieving the aim of keeping this kind of material out of the hands of minors and enjoins it on first Amendment grounds. And the warning component is compelled speech. The state appeals to the 5th Circuit and the 5th Circuit issues what I think all of us on the call found to be a pretty astounding opinion where essentially the Fifth Circuit wipes out rulings that for the past 25 plus years have established that when you're dealing with a content based restriction on speech, including speech online, you apply strict scrutiny. And instead the fifth Circuit applied what's known as rational basis review, just that the legislation at issue is rationally calculated to further that governmental interest. And so it passes rational basis review, essentially writing out decades of Supreme Court case law. And this kind of blew our minds. I was amazed at the hocus pocus, the smoke and mirrors of the fifth Circuit's reasoning here. It really did seem to be this audacious act of judicial reinterpretation. They simply dispensed with rulings that were directly on point that would seem directly analogous here that the court has handed down over the past again 25 years cases that Bob was involved with. So I'm going to let Bob take it from there. But it gets to the court because the Free Speech Coalition, which is an industry group, an adult content industry group, appeals to the fifth Circuit, to the Supreme Court, Supreme Court grants cert question presented. Just so we have it here is whether applying rational basis review to this Content based restriction on speech was an error. And whether the Fifth Circuit should have just applied strict scrutiny like the Court's precedence would have commanded to do. Fire weighed in as an amicus, Both at the 5th Circuit panel level and with the Supreme Court urging it to apply strict scrutiny. And that's. Yeah, that's how we got to today's opinion.

[Nico Perino]

I'm going to turn it over to Bob and Ronnie here in a second. I just want to urge those who are in attendance that if you do have questions, you can go to the bottom of your screen screen, you'll see a Q and a button. You can click on that and ask your questions. And we'll get to those in a moment. I just have a clarifying point that I, Bob, maybe you can help us with before you give your takeaway on the Supreme Court's decision. You have content that is obscene as to minors but is constantly constitutionally protected for adults. Often we consider this pornography right. Adults have a constitutional right to access pornography, but minors do not. And so what Texas is trying to do here is say, well, we were trying to prevent minors from accessing these, this content. And the way that we want to do it is through age verification, which necessarily then requires everyone who wants to access this content to prove who they are or what their age is in order to get there. And that creates a burden on what is constitutionally protected speech for adults, but not for minors. Now, Bob, if you want, if you want to follow up on that and then get to the Court's decision, that's correct.

[Ronnie London]

And one added concept is obscenity as a whole, which is speech that can be prohibited if it goes way too far. But this is in a lesser category of harm to minors, where you're right, it's pornography. It's not obscenity. It's speech that and material that adults have a constitutional right to access. And the decisions over the years, including one that I argued in the Court had uniformly held that the strictest level of scrutiny for passing constitutional review had to apply and that these kinds of regulations fell short of strict scrutiny. And so what the Court in this case did was reinterpret those decisions and say, well, maybe not. Maybe age verification simply provides a slight burden and that you only have to use this intermediate level of scrutiny that it passes. As Justice Kagan's dissent pointed out, this really reinterprets all of those decisions which applied to various media, including phone sex services, or so called dial porn, which is also applied in the cable television context. And finally, in the Internet context. The Court had always held that these are subject to strict scrutiny, and here it sort of reinterprets all of that. One of the ways in which Justice Thomas managed to do that for the majority was to say that this speech in this category isn't really fully protected. It's in some sort of intermediate level where it's only partially protected, and therefore you can impose these kinds of burdens. And so it really is a new reading of how these kinds of restrictions apply.

[Nico Perino]

Ronnie, do you have any thoughts about the decision?

[Bob Korn-Revere]

Yeah, to me it seems like the objective was to say, hey, look, we check verification and physical stores. That seems to have worked perfectly fine for decades. The Internet is mature enough now and we want to impose the same rule. How do we get there in a way that at least. Well, I don't even want to say makes facial sense, because I have some problems with whether the decision does that or not, but at least, you know, makes some degree of facial sense and also does do any damage to any doctrine beyond that in the area of obsceneness to minors or sexual speech. It just, it just seems like a goal oriented opinion in a variety of ways.

[Ronnie London]

Yeah, I agree with that. And let's take this premise of the decision, and it ran throughout the majority opinion, that we can do this online because we use age verification in a variety of contexts in the brick and mortar world. And I think that's where a lot of the analysis breaks down. You really can't compare the two, because in the brick and mortar world, the way it works is if you have a young looking person walk into a store and want to buy a girly magazine, for example, when he comes up to the counter, he may get carded. Or to prevent him from perusing that material, maybe they will have what are called blinder racks that cover the lower 2/3 of the COVID so that you don't have that direct exposure. This imposes a requirement at the point of entry for everybody, so you have to show your papers at the digital door to be able to get access to the speech. And it's even worse because as Will pointed out earlier, the way this law works, it applies to any online site where one third or more than one third of one third or less of the material is supposed adult content, which means that you have this gatekeeping function for speech that the majority of the speech there is perfectly fine, even as to minors. And so you have this multiple layered restriction on speech that doesn't apply in the brick and mortar world. And then even beyond that, it imposes restrictions on privacy. And the court expressly says there is no First Amendment right to access information without identification, which is a really vast expansion of the government's authority in this area.

[Will Creely]

Let me jump in on that. Just, just for our good friend. Gary in the comments, asks us to weigh in on whether the Supreme Court, as he puts it, has established a new category of partially protected speech. And you both have identified it. This is one of those decisions. I don't know if you folks feel this, but whenever I read a First Amendment decision that I know I'm going to be reading and arguing against for years and years to come, it almost feels like moving into a new house. I'm rereading paragraphs to test where the squeaky stairs are. This one, I can tell, is going to bug me for a long time. This idea, and I'll quote from Tom Thomas's majority opinion here, the law directly regulates unprotected activity, parentheses, accessing material that is obscene to minors without submitting to age verification, and parentheses, while only incidentally burdening protected activity, ultimately accessing that material. So the idea is again, this kind of disaggregation of expressive expression, of receiving information and putting that information out, that if you are trying to access material that could be obscene as to minors, you're engaged in unprotected conduct until you show an id. I mean, it scares the hell out of me.

[Bob Korn-Revere]

Well, not only that, I mean, if you have this new category of accessing material obscene as to minors without verifying age and say it's not constitutionally protected, I don't understand why intermediate scrutiny applies. Never mind, you know that, why strict scrutiny doesn't apply if it's unprotected. All bets are off.

[Ronnie London]

Yeah, and that's one of the points that the dissent makes.

[Nico Perino]

So we've talked a little bit about scrutiny here. Just as a reminder, rational basis scrutiny is the lowest level of scrutiny that the government, that the courts can apply to a government regulation. Strict scrutiny is the highest. And that's often what's applied or what should be applied. When there is a content based regulation, that is a regulation that has to look at the content in order to regulate. And here you need to look at the content to know it's sexually explicit content or content that would be obscene as to minors. The court, the question before the court was whether the rational basis was the right standard to apply in assessing this regulation. And what the court ultimately did in Thomas's decision was say, no, it's not. So it overturns the Fifth Circuit on that if I'm not mistaken, and says instead, intermediate media scrutiny, which is like a middle level of scrutiny, applies, and that the law passes intermediate scrutiny, right, Bob?

[Ronnie London]

Well, largely that's true, yeah. I mean, the court overturned the fifth Circuit's rational basis. One of the few blessings we can count from this opinion, although it didn't for like a minor who walks into a store and wants to buy a girly magazine, that still is subject to rational basis, but for putting these blanket restrictions that also affect adults in a general way, that's subject to intermediate scrutiny. And the other thing that Justice Thomas did in the majority opinion, which I get, I guess we should count that as something of a blessing too, is to try and, although it was confusing, try and create sort of a narrow category or narrow reading of what harmful to minors material they are talking about. So he distinguishes indecency, which is like the fcc, seven dirty words, that kind of thing, that was regulated in the Communications Decency act in the Reno decision, and says that's still subject to strict scrutiny. But this category, which doesn't include things like R rated movies, is, is what we're talking about. So he tries to apply a relatively narrow reading of what speech falls into this category. But in the end, I don't know what he was talking about.

[Will Creely]

And, and that that uncertainty will proliferate. I mean, this is the pronouncement from on high, the court handing down the opinion. Now, you make sense of it. Lower courts, you make sense of it. Websites, you make sense of it.

[Ronnie London]

States comply with it. How do you, and how do you count what is one third material on your website and classify that based on content? Can that be segregated and access to that segregated area only be subject to age verification? You know, there are so many confusing, moving parts that the court does not try to explain.

[Will Creely]

Quick, quick point on that last one. So the classic consideration from early days of obscenity law is, you know, putting Voltaire on the flyleaf, right? So you've got ostensibly obscene or erotic material, whatever, but then you slap a page of Voltaire in it. I wonder now if you're a website that you've got, you know, boy, we've got all this content, we're way over 33%. Quick. Put the complete works of William Shakespeare in there. What else? What else can we do, you know, all of Google Maps, just get it on there, the encyclopedia.

[Ronnie London]

This is the very question that the court ducked in 2004 in the Ashcroft decision when it was trying to figure out what does it mean to address the work as a whole in the Internet context, it couldn't answer that question. And now we're going to regulate websites in Texas based on measuring percentage of content that falls into one content category versus another, and then imposing these age verification requirements on it. It is really an impossible burden.

[Nico Perino]

Joshua has a question here. He asks, what changes the law, if any, would satisfy Fire? I agree with the intent of the law and would like to see greater protections for minors, but also value constitutionally protected speech. How can both be satisfied? I think this speaks a little bit to Justice Kagan's dissent where she said, you know, it's. I disagree with the majority. We shouldn't have applied intermediate scrutiny. There should have been strict scrutiny, but even at that standard, the law might have been constitutional. Is that something that Fire can get on board with, or do we think there's really no avenue in which you burden constitutionally protected speech for adults, that it would satisfy strict scrutiny? Yeah, Ronnie.

[Bob Korn-Revere]

It's funny because when. When Justice Kagan says that she, I don't know, inadvertently, purposefully elides the fact that when you're applying strict scrutiny, you have to use the least restrictive means. She doesn't characterize tailoring under strict scrutiny that way. And so if you are, you know, faithfully applying least restrictive means, you look at such things as parental controls and the other devices that are available out there for restricting minors access at either the device level or at the parental child relationship level, and, you know, the state would have the burden to prove that those don't work. And so there are potentially ways to do this that are not as restrictive as speech as, you know, requiring showing your id, identifying yourself, tying yourself to the specific type of adult content that you like, and risking that that's going to be disclosed either voluntarily by the website or inadvertently due to hacking.

[Nico Perino]

But I think that what critics might argue on the other side is that, yeah, those means exist, but they aren't effective.

[Ronnie London]

But, you know, that's why it was disappointing to see so little discussion in the decision of those alternatives. It was very limited, both in the majority opinion and to a lesser extent in the dissent. There was a lot of discussion in the majority opinion about how much the Internet has changed and all these things have happened. Well, yeah, the Internet has changed in a variety of ways, including the parental controls that were in a very developmental stage back when the. The earlier decisions happened 20 years ago. But now the ways in which the parents can participate with minors and regulate what they do has magnified so that you have various means at the device level, at the service level, and that can serve these interests without restricting adults by having this blanket restriction that everyone has to show their papers to get access to online materials.

[Nico Perino]

Well, when you say show your papers, I think that kind of speaks to this anonymous attendee. And Will said you said you were going to answer this question live. I also have a thought on it. The anonymous attendee says, for the non legal layperson, I think I'm the only non lawyer on this call, so I think I qualify there as well. They ask, what is the normative argument against this ruling? What is the best argument to make to the average American who may think this ruling doesn't restrict their rights, whether or not they watch porn? I had tweeted about this earlier and I said, you know, the Supreme Court now says that states can pass laws that force you to turn over your ID if you want to watch or access adult material. What also happened this week, as some of you might be aware, is that Apple, Google, Facebook were revealed to have this giant data breach with 16 billion user credentials released to Lord knows where. And so now.

[Ronnie London]

And there you have it.

[Nico Perino]

Right? Yeah. And so now, if you're adult, who wants to.

[Ronnie London]

One of the bedrock protections under the First Amendment is the protection for anonymous speech that goes back to the founding. It's one of the reasons why the Federalist Papers were written under pseudonyms. And so there is a strong and robust body of law protecting anonymous speech. And so a lot of, like, pushback against the idea that you have to reveal who you are to engage in the conversation, to engage in speech. And that's particularly true when the speech is of a sensitive nature, one that you might have some repercussions if it were known that you were receiving or providing a certain kind of speech. As in the case of adult speech here, you now have, by state law, a requirement that people identify themselves before they can be part of that conversation. And Nico, as you just said, we know that these digital services are subject to data breaches. They're not secure. And surveys time and again are finding that up to 70% of the population does not want to have to provide their identification to be able to participate in speech online. And if that were not enough, we see state legislatures trying to expand this kind of restriction beyond just this category of adult material, but to all kinds of areas of participating in social media and other kinds of online resources. And so that what is the foot in the door is subject to being expanded to undermine a very basic First Amendment protection.

[Nico Perino]

Yeah.

[Will Creely]

Where our friend Allison Bowden is The executive director of the Free Speech Coalition, in their statement said that pornographers are the canary in the coal mine. And that goes exactly to Bob's point. We fight. Folks might say, this is just porn. Who gives a damn? We fight there at that margin so it doesn't get any further, and it's easy to pick off the speech. And people might say, I don't care about it, although I. I think the profit of the industry suggests that a great many people care about it actually in practice. But to Bob's point exactly, if you start allowing the government the power to impose age gates on adult access to protected information, forget all of Thomas. Well, attempting to access the information isn't protected. That's garbage. If you allow the government to start putting up walls around access, adult access to protected speech, you're carving out a hole in the First Amendment, and the legislature will try and make it bigger and bigger. You fight those battles there so you don't have to fight them elsewhere. And Sabrina, our old colleague, actually, if you don't mind me, Nick, I'll just jump in here, she asked a really interesting question. She says, do you think the court ignored the issues with age verification and how age verification is really, as she puts it, identity verification? And I think that's absolutely correct. I think it's. One of the arguments we made as amicus at the panel stage is that there are Americans out there who either don't have identification or don't have credit cards or simply just don't want to give them up in order to be able to speak and be spoken to. That's. I mean, those are real folks.

[Nico Perino]

Marty asks here, and never even for.

[Bob Korn-Revere]

People that have IDs, I mean, when I speak on this, you know, I try and ask, you know, who lives in a state that, you know, has these age verification laws? And I get the hands that go up and I'm like, all right, now, how many of you regularly consume porn? And every single hand goes down, and that statistically cannot be correct. That's absolutely not true. But it illustrates that nobody wants to disclose even that they access this type of material, never mind create a record that you went to bondage.com and then you went here and then you went there, and it's all associated with your ID that you logged on to those sites.

[Nico Perino]

Marty asks Bob, if you don't mind, we've got a lot of questions here. I want to be able to get to a few of them, but I'll give this one to you because I think it speaks to something that you were talking about earlier. Marty says that you said the mandated speech about the harms of porn cites the Texas Commission, which did not issue such a finding. Please comment on the court's assumption about the need to protect children without citing any findings in its ruling.

[Ronnie London]

That is a matter of tradition that the court has accepted. Even if you go back to its decision in the 1960s on where it established sort of the harm to minor standard. It said at the time that maybe sociological surveys, surveys wouldn't bear this out, but it relied on more of a common sense notion of what sexual material might be harmful to children's development. And it basically then began to fashion what was a variation of the obscenity test for adults, but still said that there were protections, there were the right by minors to access sexual materials that were more age appropriate. And so the obscenity test is sort of hedged about with caveats that it is offensive as to minors or it has serious value as to minors. And so it has not required a specific sort of scientific finding that the government has an interest in shielding children from sexual materials of a certain nature.

[Nico Perino]

One attendee says in the 2017 case Packingham v. North Carolina, the court warned against broadly restricting access to the Internet as the quote, modern public square. Does the Paxton ruling undermine that principle by allowing identity based access barriers to lawful online speech? Will, you're nodding your head.

[Will Creely]

It's a foot in the door. As Bob said, it's a foot in the door again, this disaggregation of speech that up until, up until you show your papers, you're not really engaged in any kind of protected conduct. That should scare the hell out of everybody.

[Bob Korn-Revere]

Yeah, thing is important. I mean there are a few questions here asking about, well, will this spill over to age verification for social media? Will this spill over to access to materials in public libraries? I think that the answer is, you know, if you'd have asked me last week and you know whether we would have this for online content, I would have said optimistically, well, no, we've got, we've got decades of precedent that would prevent that from being the case. Now we have precedent that it's not the case anymore. So I think the foot in the door is really important because, you know, it allows the expansion. That being said, I think if you want to, if you want to try and find a silver lining in this decision, they hopefully did it in a way that shouldn't have spillover effects beyond seen as to minors content because it's tied very closely to that Particular concept. So this should not, if it's being applied principally, and it may or may not be, but if it's being applied principally, it shouldn't allow age verification for, for example, social media. Now, on the other hand, for content in public libraries that people are going to argue is obscene as to minors, then, yes, I mean, you can ask for ID and seek parental consent there. Under the logic of this decision, are.

[Will Creely]

You going to have to show ID to get into the library? Is the library, you know, could I pass a state law now that says if adults want to access material in this library that could be considered obsceneist of minors, they have to show an id? And I mean, I don't, I don't. Now we have, I don't know, we're on, we're on rocky footing there.

[Ronnie London]

Or everyone who enters the library has to show ID entering the door.

[Will Creely]

Yeah, that's right.

[Ronnie London]

Somewhere in the library, maybe a third of the material is stuff that we think kids shouldn't see.

[Will Creely]

There you go.

[Ronnie London]

That's really the question. And as Sabrina, I think very carefully, very helpfully summarized it, age verification is identity verification. We had touched on that before, but I think that thread really captures it and it really is a dangerous path when you start saying that people have to identify themselves to get access to constitutionally protected speech.

[Nico Perino]

Philip asks, why is it that stare decisis means little to nothing to this court? The idea being here, as you guys have spoken about, there have been something like four other cases that deal with the same or very similar questions, and it seems like they're going in a different direction in this case from those previous cases.

[Bob Korn-Revere]

Well, it's not limited to this decision and it's not limited to this issue or even this particular constitutional right. Why is this court, you know, seem like it's less bound by stare decisis? I, I, you know, I'm not going to answer that because I think it's, you know, in the individual personalities and proclivities of some of the justices. I will say, however, I mean, you know, the court has, you know, when it's been convenient, construed stare decisis, either implicitly or explicitly in ways that, you know, wouldn't seem like a faithful application, even going back to like, the, you know, the abortion decisions that created the trimester decision, the trimester framework where they said they were doing stare decisis, but instead they were really doing something new that departed from prior practice.

[Nico Perino]

But, but have we seen something like this, Bob, in the First Amendment context where the, the court has so many decisions on a certain question, and then two decades later decides to roll back those existing First Amendment protections, apply a lower standard.

[Ronnie London]

We have seen other cases in which the Court has tried to slice a piece off of, you know, previous precedents, trying to narrow it in certain ways. And the way in which Justice Thomas did that in, in this opinion was to say incorrectly. I think that the Court had never before dealt with the pure question of age verification as if that were something different from what was happening in the previous decisions. He also described those previous decisions not as involving a screening mechanism, age verification to get access to speech. He described them as speech bans, including in the decision that we talked about earlier that I argued in the Playboy case where Justice Thomas, ironically enough, was the fifth vote for striking down the regulations. In that case, he said that he's signed on to an opinion there that said that if you burden speech that is protected as to adults, that is the same thing as a ban. Whereas in this case, his whole opinion is focused on the idea that this isn't a ban, it's just a burden on adult speech. So you only have to apply intermediate scrutiny. It's really hard for me to understand what the distinction is. And I think that was pointed out very well in Justice Kagan's dissent.

[Nico Perino]

Will, it looks like you had something you want to say. And then I have a question for you.

[Will Creely]

There's a couple of good questions here that I want to want to answer. I think they're related. I'll take give you my spin. I'm curious to hear all of yours. Mr. Rick Jones.

[Nico Perino]

Yes.

[Will Creely]

Asks. I said, I remember that when this went to Supreme Court, one of the things I read about was whether the Texas law actually works. Pornhub, one of the plaintiffs, shut down access in Texas to their site in order to comply with the law. But I live in Texas and it took me less than a minute to find other huge sites that were and still are readily accessible here. Is there also a problem with selective enforcement? I would phrase the problem a little bit differently, and this is again, to borrow a point made very well by our friends at the Free Speech Coalition, that when you impose these kind of content based burdens, when you impose these kind of functional restrictions on speech, which should invoke First Amendment strict scrutiny, I don't think the burden ban distinction is nearly as solid as Thomasine to think it is. I think that was a bit of jiggery pokery, so to speak. But when you impose that kind of burden, the desire to see this kind of Protected content doesn't go away. So what do people do? They go to sites that are outside of the country that are offering different materials that are perhaps not as regulated as the United States adult content industry and you start getting into some dark and potentially illegal in this country places and that and that, that's what you're seeing. So you're driving the traffic elsewhere.

[Ronnie London]

You use a VPN, you use a.

[Will Creely]

VPN, you use VPNs. I mean, I think there are ways that folks will evade this or they will access unregulated content from overseas or elsewhere that is, you know, invites its own host of policy problems. Then there's another related question from an anonymous attendee who asks, and I respect it, we did not ask you for your age, but comments here. Your identity is your own. Could this ruling spark a patchwork of state laws that create digital borders or accessing content? Whoops, I just lost it.

[Nico Perino]

Oh, sorry. I resolved it. Yeah, sorry. I said that you were answering it live and I clicked the button. So that made it disappear, basically.

[Will Creely]

Is this going to create a patchwork of state laws where depending on where you are in the country, you'll have different access to lawful protected material for adults? And I think the answer is clearly going to be yes. But I'd be curious for everybody else's.

[Nico Perino]

Take, can I just say something about that Rick Jones question? I found it interesting in Justice Kagan's dissent, she cites to some of the findings from the district court that said that it could cost at least $40,000 for every $100,000 verifications or else pay penalties as the law requires of $10,000 per day. So unless you buy this very expensive tool to verify identity, you. You risk $10,000 a day. And so I think you could, you could see a lot of companies go out to business potentially unless the market becomes more robust and the price goes down.

[Bob Korn-Revere]

Well, and, and webcams and smartphones and social media have democratized the production of this kind of so that individual performers and artists can have their own site and they aren't necessarily going to be in a position to purchase that kind of age verification mechanism or software in order to keep their sites afloat.

[Nico Perino]

Bob, did you want to respond to the question that will teed up about a patchwork of different laws in different states? It somewhat reminds me of the many CDAs or many communication decency acts that were sprouting up across the country in the 90s and early 2000s.

[Ronnie London]

That's right after in 1996 when Congress passed the telecommunications act, which include the Communications Decency Act. A number of states, even after the Supreme Court had struck down that law, had tried to adopt their own mini versions of that. And not only were those laws found to be unconstitutional under the First Amendment, they were also found to violate the Commerce Clause because they imposed differential burdens between different states on interstate commerce. We may see that kind of patchwork, and in fact, we're already seeing it in real time. That kind of patchwork spring up and, you know, it's going to depend on how similar they are to the Texas law and whether or not they're going to be vulnerable to First Amendment challenge. But I think they're also going to impede interstate commerce in much the same way.

[Nico Perino]

Josh asked, hey, Josh, do you know of any other instance where the Court has used intermediate scrutiny in a First Amendment case?

[Ronnie London]

Well, sure. In cases involving symbolic speech, the Court has applied intermediate scrutiny where it's basically regulating conduct. In commercial speech cases, the Court uses intermediate scrutiny to govern regulations of advertising. But in pure speech cases, and particularly in content based speech cases like this is, and everybody tends to acknowledge this is a content based restriction, then strict scrutiny has been the rule. And the magic trick that Justice Thomas pulls in trying to distinguish this is to say that, well, we're not really regulating the content, we're regulating the physical access without ID of partially unprotected speech. And so he tries to transmogrify what is a pure speech content based question into something else.

[Nico Perino]

David asks, is the Court going to keep sweeping content based statutes into the, quote, incidental effect on speech buckets?

[Will Creely]

Look out. We'll be, we'll be here to fight against it. But if this, this is a little bit too loosey goosey for my comfort. There's, as I was saying to these folks earlier, I think there's going to be a lot of play in those joints. What do you mean we're regulating speech? We're just putting an incidental burden on her. What do you mean we're regulating speech? It's not protected until you've done X or Y. You know, I mean, the sensors are creative. We're going to see applications of this.

[Nico Perino]

Tom, Tom has a question here. It's a little bit longer, but I want to focus on the first part of his question. He says, is sexual speech considered obscenity speech? Is sexual speech obscene? Bob?

[Ronnie London]

No, it isn't. And the Supreme Court made that quite clear in 1957 in the Roth decision when Justice Brennan wrote that sex and obscenity are not synonymous. And that's why you have a three part test for what is obscenity. Because sexuality by itself is not enough. Which is why you have a broad category of sexually oriented speech that is fully protected under the First Amendment but doesn't fall off the edge of the First Amendment earth once it is deemed to be obscene. This category of harmful to minors tries to create this sort of middle category of speech that can be regulated for minors but not prohibited as to adults. But after today we know it can be burdened as to adults.

[Nico Perino]

Ryan asks a good question.

[Will Creely]

He says, wait, before we go any further, can I just quote from that? Because that's got one of the, I think the best lines about, about the subject of any that any jurist has ever written. The portrayal of sex literature and scientific works is not itself sufficient reason to deny material the Constitution, constitutional protection of freedom of speech, press, sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages. It is one of the vital problems of human interest and public concern. I think that's very well put. Thank you for indulging me.

[Ronnie London]

And that goes back to 1957.

[Nico Perino]

Wasn't there a editorial writer who one time said that censorship is the greatest urge in humans with sex being a distant second? That was Matt had off Nat Hentoff.

[Will Creely]

Oh, cheers to Nat Hentoff.

[Nico Perino]

I think actually Nat wrote it in Free Speech for me, but not for thee. But he quoted some other.

[Ronnie London]

He did attribute it to someone.

[Will Creely]

I'm going to raise two glasses tonight. One, to Jeffrey Douglas, longtime now board chair of Free Speech Coalition, who deserved a better fate today. And also two, to the late great Nat Hentoff who used to send commentary to fire on our press releases via fax machine. So we would be in the office and we'd hear the fax machine start going. We say there's only one person who's sending us a fax and that is Mr. Net Hentoff. It was an honor to receive those faxes and I miss them.

[Nico Perino]

And Nat Hentoff would have been 100 years old this month on June 10th. So happy 100th birthday to net Hentoff. Ryan has a really good question here. He says, speaking of social media, I see people focusing on websites specifically made for porn, but adult content is on mainstream social media websites like X Reddit and others. How do you think this affects those. So the Texas law says that if you have more than 33% of your content that would be obscene as to minors, then you're implicated by this law. But does that mean the law is maybe under inclusive, it doesn't really serve a compelling government interest. If you could just go on X and find breasts, for example.

[Ronnie London]

Well, that is the problem, isn't it? How do you even count what is one third of the material on a site like Reddit? It really is administratively impossible to even determine which sites are subject to this and even say, look at Amazon. I mean, certainly it has, you know, the universe of books available on there, but it also has quite a lot of books that would qualify and other materials that would qualify under this law. Now, who's going to go in and do the inventory and figure out who's subject to this and who isn't? And who's going to be surprised by finding out that their site suddenly is subject to this law? It is so poorly drafted in that regard. Even if you accept everything else about the standard, just how you make this law work is really a difficult proposition.

[Will Creely]

And the law, the text explicitly reaches social media, a commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one third of which is sexual material harmful to minority. Interesting. You know, it just strikes me that it says a commercial entity, there's a market out there, a niche for a non profit.

[Bob Korn-Revere]

There was a whole, you know, six circuit decision when they passed the adult record keeping and the plaintiffs were people who engaged in private exchanges of classified ads and material wasn't for a commercial purpose. And the law was struck down as to that.

[Nico Perino]

What is it? And will you read the law there? What's the difference between harmful to minors and obscene as to minors? Is there any difference or is that what. They're just, they're the same. Okay.

[Bob Korn-Revere]

On which point I would, you know, caution you say, you know, simply saying, oh, they're, you know, breasts on social media. That's not going to be enough. And the decision at least does us the courtesy of making that clear that we're not talking about even just R rated material. It's going to have to be more explicit than that to qualify as obscene. As to minors.

[Will Creely]

You might even say that you'll know it when you see it. Yeah, I don't know. I mean, I don't know if it does do us a favor making it more clear. He says not PG 13 or R rated movies. Our friend Lee Roland over at NCAC who joined us on the brief said maybe, maybe Justice Thomas and I are watching different R rated movies.

[Nico Perino]

Close up here. I wanted to keep folks for no more than 45 minutes, I would just ask, where does this leave us on these age verification laws for adult websites? I know there have been some other lower court decisions elsewhere there that have struck down these laws on First Amendment grounds. What's going to happen to those decisions? What can we expect across the country now?

[Ronnie London]

Well, we will see efforts by various states to adopt these kinds of laws, and they will have to be tested in their specific facts, you know, just how much of a burden they do impose on people. And they may differ from the Texas.

[Nico Perino]

Law or not, but I think there are 21 states that have passed laws like these. According to the majority decision, we will.

[Ronnie London]

All see efforts at mission creep in trying to expand the boundaries of what considered to be harmful to minors, just as today's decision leaves that category rather uncertain. We see this in various other contexts, such as in library regulations where they try and classify books involving LGBTQ issues as being obscene to minors or even obscene. And so we will see efforts to expand both the subject matter that is covered and in the ways that these laws can be applied.

[Will Creely]

Yeah, let me just add, each Supreme Court decision, most of them regarding the First Amendment, is like a tool, and once you've introduced it into the ecosystem, people are going to find creative and new ways to use it. If it's a decision that's helpful for folks who defend expressive rights like us, we're going to put that thing to work. If it's a decision that allows for some openings, some heretofore unexplored arguments, or some old arguments now given new life, or some doors that it seemed closed, cracked open a little bit, folks are going to try and push. So we are going to have to be on our guard and we will redouble our efforts.

[Nico Perino]

We got to about 20 questions or so. We still have 17 open. I apologize to everyone for not being able to get to your questions. But if you enjoy conversations like these, where you get to just ask us questions and we respond, we do member calls every month and we essentially hop onto the webinar. And whatever free speech question you have, it doesn't have to be on Free Speech Coalition v. Paxton, for example. We answer, so the next one should be coming up in the middle of July. We already did our June member call. You can get access to these by becoming a Fire member, going to the fire.org and making a donation of 25 or more, and then we host those conversations. If you can't attend in person on our members portal on our website, I would also encourage you to check out so to Speak, the free Speech podcast. We're going to be posting this conversation to that feed in a couple hours. Here you can subscribe on any of your major podcast apps as well as on Substack. I want to thank you all for attending this. We're going to try and do more of these. As I mentioned at the top, we're going to start calling it Fire React. So when there's big news in the free speech world doesn't necessarily need to come from the Supreme Court. We'll get a group of Fire staff on to give our brief reaction, followed by your questions that we will do our best to answer. So, Ronnie, Bob, Will, thanks. Thanks for doing this. And thanks for everyone attending.

[Will Creely]

Thank you.

[Ronnie London]

Thank.

[Will Creely]

You.