from the seems-bad dept
The Supreme Court this morning took a chainsaw to the First Amendment on the internet, and the impact is going to be felt for decades going forward. In the FSC v. Paxton case, the Court upheld the very problematic 5th Circuit ruling that age verification online is acceptable under the First Amendment, despite multiple earlier Supreme Court rulings that said the opposite.
Justice Thomas wrote the 6-3 majority opinion, with Justice Kagan writing the dissent (joined by Sotomayor and Jackson). The practical effect: states can now force websites to collect government IDs from anyone wanting to view adult content, creating a massive chilling effect on protected speech and opening the door to much broader online speech restrictions.
Thomas accomplished this by pulling off some remarkable doctrinal sleight of hand. He ignored the Court’s own precedents in Ashcroft v. ACLU by pretending online age verification is just like checking ID at a brick-and-mortar store (it’s not), applied a weaker “intermediate scrutiny” standard instead of the “strict scrutiny” that content-based speech restrictions normally require, and—most audaciously—invented an entirely new category of “partially protected” speech that conveniently removes First Amendment protections exactly when the government wants to burden them. As Justice Kagan’s scathing dissent makes clear, this is constitutional law by result-oriented reasoning, not principled analysis.
As we’ve noted, in cases like Ashcroft v. ACLU and Brown v. EMA, the Supreme Court had long established that states couldn’t just throw around vague claims of “harmful to minors” to ignore the First Amendment, or at the very least to lower the standard of scrutiny from “strict scrutiny” to “intermediate scrutiny” (though not, as Ken Paxton hoped, all the way down to “rational basis.”).
The real danger here isn’t just Texas’s age verification law—it’s that Thomas has handed every state legislature a roadmap for circumventing the First Amendment online. His reasoning that “the internet has changed” and that intermediate scrutiny suffices for content-based restrictions will be cited in countless future cases targeting online speech. Expect age verification requirements to be attempted for social media platforms (protecting kids from “harmful” political content), for news sites (preventing minors from accessing “disturbing” coverage), and for any online speech that makes moral authorities uncomfortable.
And yes, to be clear, the majority opinion seeks to limit this just to content deemed “obscene” to avoid such problems, but it’s written so broadly as to at least open up challenges along these lines.
Thomas’s invention of “partially protected” speech, that somehow means you can burden those for which it is protected, is particularly insidious because it’s infinitely expandable. Any time the government wants to burden speech, it can simply argue that the burden is built into the right itself—making First Amendment protection vanish exactly when it’s needed most. This isn’t constitutional interpretation; it’s constitutional gerrymandering.
The conservative justices may think they’re just protecting children from pornography, but they’ve actually written a permission slip for the regulatory state to try to control online expression. The internet that emerges from this decision will look much more like the one authoritarian governments prefer: where every click requires identification, where any viewpoint can be age-gated, and where anonymity becomes a luxury only the powerful can afford. Thomas’s “starch” in constitutional standards? It just got bleached out of existence.
There’s a lot of throat clearing in the majority opinion regarding the government’s power to block access to “obscene” material, and where it can limit access by children to sexually explicit material. That’s well-worn territory. The issue here is that with online age verification you have some very significant problems—which the Supreme Court used to recognize: the burden on adults of having to prove their age (and relinquish significant privacy in doing so) as well as the fact that the tech sucks and frequently gets stuff wrong.
But Thomas seems to act as though this is a simple extension of laws that prohibit stores from selling adult magazines to kids.
Thomas then claims that “The need for age verification online is even greater” and even cites Brown v. EMA (which found California’s law preventing the sale of violent video games unconstitutional) to somehow… support the argument here?
Thomas then falsely claims that the law does not regulate the speech of adults, which clearly goes against the opinion in Ashcroft.
That’s legal fiction dressed up as statutory interpretation. Age verification requirements absolutely burden adult access to protected speech—that’s the entire point of challenging them.
The majority admits that there is some First Amendment concern here, but argues that it doesn’t require strict scrutiny… in part because that would make all age verification laws suspect, even those for brick-and-mortar stores, which Thomas uses as a kind of “gotcha” to support his argument that it’s fine online as well:
Thomas is doing exactly what he rails against in other contexts: turning the First Amendment into a mushy balancing test instead of a clear constitutional command. The only difference here is that sexual content apparently makes him squeamish enough to abandon his usual textualist principles.
To get around the ruling in Ashcroft, he claims that COPA (the law it invalidated) was actually a ban on content harmful to minors, even as he eventually admits that COPA (like the Texas law at issue) had an age-verification requirement that would allow such content to be published. So what is the difference? The majority claims that with COPA the age-verification aspect was an affirmative defense, whereas with the Texas HB 1181 law, it’s a mandate. To me, that makes the Texas law even more of a problem and a burden, but Thomas reads it the other way:
While the majority opinion is written to suggest it only applies directly to “pornographic” content deemed “obscene to children,” it’s really taking an axe to the fundamental ruling in the Reno case (which tossed out most of the Communications Decency Act) and Ashcroft. Thomas claims this is okay because the internet is different now:
The majority claims that those rulings “do not cease to be precedential simply because technology has changed so dramatically” but that they can be limited because so many people have the internet.
That argument is bonkers and dangerous. If “more people use technology now” justifies weakening constitutional protections, then every digital right is up for grabs. That line will now show up in briefings across the country as states argue that widespread internet adoption somehow diminishes the First Amendment’s force online.
That’s a shot across the bow of free speech online. It’s Justice Thomas saying it’s “open season” to seek to regulate speech online.
The opinion then spends a lot of time explaining why intermediate scrutiny is the right standard, and not strict scrutiny (as FSC wanted) or “rational basis” (as Texas wanted). This feels like Thomas trying to split the baby (which, I should remind you, kills the baby) and pretending to compromise. It’s not a compromise. It’s a full frontal assault on internet speech.
The dissent, by Kagan, understands this problematic result:
Kagan takes issue with Thomas’ claim that this case is somehow different from the existing precedents:
The dissent also calls out the very real burdens that online age-verification creates that brick-and-mortar age verification does not. This is a point that Thomas effectively ignores:
The dissent specifically highlights how this case was nearly identical to Ashcroft, and the majority is simply making up random reasons to pretend it’s different. Amusingly, Kagan cites Thomas’s concurrence in Ashcroft to make that point.
Kagan then calls out how the majority ruling creates an entirely new category of First Amendment speech: “partially protected” speech.
As for Thomas’s argument that “the internet is different now,” well, Kagan points out that may make the facts of a case different, but should never change the level of scrutiny:
And, as Kagan concludes, the majority is now admitting that Texas law is not the least burdensome way to reach this result, and that’s seems like a real problem for speech:
The only sliver of possible “good news” is that the majority opinion focuses so heavily on how intermediate scrutiny applies only because some adult content is “obscene to minors,” making it unprotected by the First Amendment, meaning that this ruling may not be as helpful to those who wish to impose age verification requirements on all social media, which would necessarily cover plenty of fully protected speech. But Thomas’s majority opinion is written in a manner that unfortunately will allow politicians around the country to relitigate those questions that had once been seen as very clear and settled law.
Kagan’s final line cuts to the heart of what Thomas’s majority has abandoned: the principle that constitutional rights don’t disappear just because the government finds the speech distasteful or because technology makes enforcement more challenging. The First Amendment was designed to protect unpopular speech—speech that makes authorities uncomfortable, speech that challenges prevailing moral views, speech that powerful people would prefer to suppress.
By creating his “partially protected” speech doctrine and blessing age verification burdens that would have been unthinkable a decade ago, Thomas has essentially told state governments: find the right procedural mechanism, and you can burden any online speech you dislike. Today it’s pornography. Tomorrow it will be political content that legislators deem “harmful to minors,” news coverage that might “disturb” children, or social media discussions that don’t align with official viewpoints.
The conservatives may have gotten their victory against online adult content, but they’ve handed every future administration—federal and state—a blueprint for dismantling digital free speech. They were so scared of nudity that they broke the Constitution. The rest of us will be living with the consequences for decades.