The Supreme Court’s recent deliberation on a high-profile case has sparked intense debate, with the justices deeply divided on the key issues. The divided opinions reflect the complex and contentious nature of the matter in using rational basis review or the strict scrutiny review for HB 1181, underscoring the challenges the nation’s highest court faces in navigating sensitive legal and social questions in in line of technology and the law.
Following HB 1181, or the law relating to restricting access to sexual material harmful to minors on an internet website, which was implemented by the New Orleans federal appeals court, the US Supreme Court seems divided on its ruling for age verification before minors can access porn sites.
To uphold the government’s interest in preventing the young people from viewing porn, but without violating the First Amendment or the constitutional right to protect freedom of speech, religion and the press, the US Supreme Court is somewhat divided in ruling for the HB1181. The said law, which took effect in 2023 restricts access to sexual material harmful to minors on an internet website. Last year, was allowed by a federal appeals court judge in New Orleans to be implemented stating that it was rational with the government’s interest in preventing the young citizens from accessing and viewing porn sites.
A federal judge in Austin, Texas issued an order shortly before H.B. 1181 was slated to go into effect in 2023 that temporarily barred the state from enforcing it. Senior U.S. District Judge David Alan Ezra concluded that the law is likely unconstitutional.
But the 5th Circuit lifted Ezra’s order, clearing the way for the state to implement the age-verification requirement. The court of appeals applied a less rigorous standard of review, known as rational-basis review, and not the strict scrutiny basis.
To distinguish the tests to be applied, the rational basis test requires the law to be reasonably related to a government purpose, while strict scrutiny requires the law to be narrowly tailored and the least restrictive means to achieve a compelling government interest.
The said decision was challenged by the trade group for the adult entertainment industry represented by Derek Schaffer. He argued that the 5th Circuit’s decision to apply rational-basis review was an “aberrant holding” or a clear deviation that defies the Supreme Court’s “consistent precedents’. He stated that in the 2004 ruling for the Ashcroft v. ALCU , justices applied strict scrutiny instead of the rational basis test in concluding that a federal law – the Child Online Protection Act – similar to H.B. 1181 was likely unconstitutional.
Hence the Supreme Court Justices have debated and there was no indication that majority of the justices were ready to uphold the lower court ruling. Some of the magistrates seemed to agree with the challengers that the New Orleans court before allowing the law to be implemented should have exercised the strict scrutiny test, the more stringent one to determine if it is consistent with the First Amendment.
Representing the government is Deputy Solicitor general Brian Fletcher who argued that the court of appeals erred in applying the less rigorous standard of review but it should not prevent the states or the Congress from preventing the distribution of pornography to children online.
Defending HB 1181 is Aaron Nielson, texas’ solicitor general, stating that Schaffer and the challengers do not dispute that the websites that HB1181 targets are those that harm children. He referenced a similar situation 50 years ago particularly the Ginsberg v. New York case where the Supreme Court applied the rational basis test to the law criminalizing stores to sell pornographic magazines to young people.
If strict scrutiny applied to H.B. 1181, Nielson told the justices, Texas would have to satisfy the same high standard to keep children from entering strip clubs – something that the Supreme Court’s cases do not require, he said. And Texas has long tried to use content-filtering software, which the challengers cite as an alternative to H.B. 1181’s age-verification requirement, to keep children from having access to pornography, but the problem “has only gotten worse.”
Justice Jackson emphasized that Ginsberg – the case on which the court of appeals relied – was a case that dealt with the rights of young people, rather than the rights of adults.
Chief Justice John Roberts and Justice Clarence Thomas appeared to suggest that even if the Supreme Court had in the past applied strict scrutiny to laws regulating adults’ access to sexually explicit content, advances in technology might justify taking another look at the standard of review. Access to pornography, Roberts observed, has “exploded”: According to him, teenagers’ access to porn nowadays is so easy and even becoming more graphic.
Thomas noted that when the court issued its decision in Ashcroft, it was in a “world of dial-up Internet” access. “You would admit that we’re in an entirely different world” now, he quotes.
Shaffer resisted the idea that changes in technology justified a change in the standard of review. While acknowledging that the government has a compelling interest in preventing young people from gaining access to porn – the first part of the strict scrutiny test – he stressed that technological advances would merely be something to consider as part of the determination whether strict scrutiny is satisfied.
Since there is more deliberation regarding this matter, the Court may release its pronouncement by late June or early July.
This article was first published at Howe on the Court