Free Speech Coalition, Inc. v. Paxton

Within the pending Supreme Court case, Free Speech Coalition v. Paxton, social media sites have sued Attorney General of Texas, Ken Paxton following the passing of the new H.B. 1181 law. The new law that passed is, “a law regulating commercial entities that publish or distribute material on internet websites, including social media platforms, where more than one-third of the content is sexual material harmful to minors,” to, “implement age verification methods to limit access to adults and display specific health warnings on their landing pages and advertisements (Oyez 2024)”

Bill H.B. 1181, was taken into effect in the state of Texas on September 1, 2023. This law, “requires commercial entities publishing sexually explicit or pornographic material to verify that users are over 18 (H.B. 1181).” Just after the law was put into place, “plaintiffs sued, claiming H.B. 1181 violates their First Amendment rights and, for some plaintiffs, conflicts with Section 230 of the Communications Decency Act” (Oyez 2024). With the First Amendment referring to, “Congress shall make no law... abridging freedom of speech” (Constitution 1), and Section 230 of the Communications Decency Act which, “provides limited immunity from legal liability to providers and users of ‘interactive computer services,’ [so] they may not be held liable for restricting access to objectionable material in good faith those providers and users may not be treated as the publisher or speaker of any information provided by another information content provider (Benson, Brannon 2024).”

When trying to choose which side I agree with, it is definitely difficult. While our government has an obligation to protect our children from harmful material, I do agree that laws like this can create barriers that lead to abridging freedom of speech. For example, the ACLU mentions that the bill, “Restricts adults’ access, effectively requiring them to identify themselves to pass through the age-gate,” of websites. They continue by saying the verification process, “robs people of anonymity, and threatens to bar individuals, for example, those who lack government identification or whose age is mis-identified by the relevant technology, from accessing the websites altogether” (ACLU 2024).

This case also relies on the determining of a specific level of review. A legal question that is called into this discussion is, “Is a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access subject to “rational basis” review or “strict scrutiny” (Oyez 2024)?

According to the Pacific Legal Foundation, “courts employing rational basis presume that the laws, in this case occupational licensing requirements, are constitutional” (Mathias 2022). Therefore, they are not questioning the constitutionality of the law, so plaintiffs must defend that, “that there is no rational relationship between the government’s interest, and the means chosen to achieve that interest” (Mathias 2022). So, while the law may be a in place for a good cause, ethically and morally, the way that the law was put in place was not.

Through the legal case Free Speech Coalition, Inc. v. Paxton, one can visualize the nuance and layers to each of them. While H.B. 1181 may be a law that was put in place, solely to protect our children, there are still consequences of that law that could potentially infringe upon the First Amendment of the Constitution. With this said, the American College of Pediatricians revealed in a 2022 survey of teens, “54% of teens had seen pornography by the time they were 13 years old and 15% prior to 11 years old” (American College of Pediatricians 2024). Issues like these raise questions like, should the government be involved or should it be a parent’s job to monitor what their children are watching? The survey also mentions that, “Pornography exposure at these young ages often results in anxiety for the child. Children also report feelings of disgust, shock, embarrassment, anger, fear, and sadness after viewing pornography. These children can suffer all the symptoms of anxiety and depression” (American College of Pediatricians 2024). With this said parents should not wait for legislation to protect their child.