How closely should courts scrutinize laws that make it more difficult for adults to access constitutionally protected speech? That’s the question at the center of a case involving a Texas law, H.B. 1181, that requires websites hosting sexual material that would be harmful to minors to verify the age of their users.
In the case, a lower court — the Fifth U.S. Circuit Court of Appeals — rejected a holding from Ashcroft v. ACLU, a 2004 U.S. Supreme Court decision that other circuits have treated as binding precedent: That such laws must be subjected to the highest standard of judicial review, known as strict scrutiny. In the Ashcroft case, the application of strict scrutiny was the death knell for the federal Child Online Protection Act (COPA), which the Fifth Circuit conceded in the Texas case was “very similar” to H.B. 1181.
The Texas case, Free Speech Coalition v. Paxton, has attracted dozens of amicus briefs on both sides and will be argued before the Supreme Court on Wednesday, Jan. 15. Harvard Law School Professor Rebecca Tushnet, the Frank Stanton Professor of the First Amendment, will be waiting for the ultimate decision.
“I will be looking for whether the justices who want to throw out the existing First Amendment apparatus have any idea of what they want to replace it with or whether they will simply know what laws are ok when they see them, as is apparently the case with the Second Amendment now,” she says.
Tushnet is a leading intellectual property law scholar who has written about the Supreme Court’s disparate treatment of the First Amendment in that context.
She also wrote early last year about another Texas law, H.B. 20, that prohibits social media platforms from removing, demonetizing, or restricting access to posts based on their “viewpoints” and allows individuals as well as the state to sue for alleged violations. In that piece, she criticized efforts to treat wide-ranging content across the web consistently, referencing a quote from Ralph Waldo Emerson that “a foolish consistency is the hobgoblin of little minds.”
“Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day,” the quote continues.
The two Texas laws seem to illustrate exactly such an approach. In an emailed Q&A with Harvard Law Today, Tushnet weighed in on what’s at stake in the upcoming Free Speech Coalition case.
Harvard Law Today: Why is Free Speech Coalition a case you’re following — what makes it interesting to you?
Rebecca Tushnet: The Fifth Circuit explicitly defied controlling Supreme Court precedent, essentially inviting the new Supreme Court majority to reject that precedent and further dismantle the existing law of the First Amendment.
HLT: What do you think of the Fifth Circuit’s reasoning for doing so?
Tushnet: It’s about power: The Fifth Circuit’s reasoning isn’t persuasive as legal reasoning. The only question is whether the Supreme Court agrees that it is time to abandon the strict scrutiny framework for regulating sexual speech.
HLT: The age verification requirement of H.B. 1181 is the core remaining issue in the case, but what do you think of the law’s other requirement, which had required sites to post certain “warnings” about pornographic content?
Tushnet: The “warnings” were claims about pornography’s harms that had very little to do with science and much to do with shaming people around sex, which is a great way to increase bad behavior and deter people from reporting sexual abuse. In general, the issue of when government can mandate warnings is a microcosm of the key question of the First Amendment: Under what circumstances should we trust government to determine truth for us — and which parts of government? Is a legislature making a blanket statement like “sex is determined by biology” more trustworthy than a jury finding “Mr. X defamed Ms. Y,” or less so?
“In general, the issue of when government can mandate warnings is a microcosm of the key question of the First Amendment: under what circumstances should we trust government to determine truth for us — and which parts of government?”
HLT: How do you reconcile Texas’ H.B. 1181 and H.B. 20? It seems they are sort of at odds: H.B. 1181 restricts access to certain content, and H.B. 20 tells the platforms they can’t restrict access to certain content.
Tushnet: Texas wants to dictate what speech people can have access to — conservative speech (this was already based on a misconception about what content big platforms were moderating, but it was a very popular misconception) — and what they can’t — sexual speech.
HLT: I saw a quote from the petitioners in the Free Speech Coalition case that sexual expression is the “canary in the coal mine of free speech.” What implications does the H.B. 1181 case have outside the adult content space?
Tushnet: It very much depends on what the Court does. If the Court is open to revisiting the First Amendment framework that structured the last 70 years or so of constitutional history, then many things will be up for grabs, including defamation law, political speech regulations, and compelled speech. Speech about abortion and LGBTQ issues would be the obvious next targets.
HLT: Do you think H.B. 1181 qualifies as a “hobgoblin of little minds” the way H.B. 20 does? Why or why not?
Tushnet: Emerson was arguing that inconsistency is not always a defect; it depends on whether the consistency is “foolish.” Sometimes the facts change; sometimes your understanding of them changes. H.B. 1181 isn’t bad because it’s inconsistent. It’s bad because it deprives adults of content that is legal and, frankly, often pleasurable for them; there’s nothing wrong with watching sexual content that was consensually produced and paid for.
It’s bad because it drives people to sites that don’t follow the rules — Texas can’t stop sites overseas, and those sites often have stolen and nonconsensual content. It’s bad because it discriminates against sites that focus on sexual expression, but allows sites like X to keep profiting from pornography, while X itself makes it hard for sex workers and performers to benefit. The common thread is that Texas is harming the people who make pornography and shaming people who consume pornography; it is not actually decreasing the amount of pornography or sex in the world.
HLT: In the IP article you co-wrote with Stanford’s Mark Lemley, you looked at other Supreme Court decisions that, as you write, use “rationales that seem directly at odds with its First Amendment jurisprudence.” Is there a worrisome trend at the Court when it comes to the First Amendment?
Tushnet: It’s hard to say right now; we will soon see. The Court’s new conservative majority may move quickly in the First Amendment area, as it has in other areas, but it may not announce those moves in a clear way; that’s what I’ll be looking for in this term.
“The promise of judicial opinions, especially Supreme Court opinions in a system of judicial review, is guidance for lower courts and legislatures. If most applications of the rules are unpredictable, then what we’re doing isn’t law.”
HLT: When you say “whether [judges] will simply know what laws are ok when they see them,” that brings to mind the quote attributed to Justice Potter Stewart about what constitutes obscenity: “I know it when I see it.” What’s problematic about using the same approach to determine a law’s constitutionality?
Tushnet: The promise of judicial opinions, especially Supreme Court opinions in a system of judicial review, is guidance for lower courts and legislatures. If most applications of the rules are unpredictable, then what we’re doing isn’t law.
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