Free Speech Coalition, Inc., Et Al.,
Petitioners, v.
Ken Paxton, Attorney General of Texas,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals for the Fifth Circuit
Brief of Amici Curia
Foundation for Individual Rights and Expression, Reason Foundation, and First Amendment Lawyers Association in support of petitioners and reversal
This Court has consistently required the government to meet a heavy burden when it regulates lawful adult speech in the name of protecting minors. Despite this clarity, Texas enacted—and the United States Court of Appeals for the Fifth Circuit overturned a preliminary injunction to uphold—a law that burdens adult access to protected speech online. Other states have already followed suit or are primed to do so.
In a string of rulings dating back decades, this Court has made clear that when the government seeks to prevent minors from accessing lawful sexual content, “the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989). Imposing a “burden on adult speech is unacceptable,” this Court held, “if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997); see also United States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000) (same); Ashcroft v. ACLU, 542 U.S. 656, 670 (2004) (same).
For generations this Court’s conclusion has been unmistakable: Statutory burdens on adult access to adult content must satisfy strict scrutiny. And that conclusion makes the same intuitive sense today as it did in the many previous cases that embraced it. After all, a statute singling out lawful sexual expression is a content-based speech restriction. As such, it is “presumed invalid” because of its “constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft, 542 U.S. at 660. A content- based speech restriction poses such a grave threat to expressive rights that “it can stand only if it satisfies strict scrutiny,” which requires the government to employ the least restrictive means of serving its objectives. Playboy, 529 U.S. at 813.
But the Fifth Circuit disagrees. Contrary to this Court’s well-settled precedent—and in a sharp split with other circuits—a Fifth Circuit panel somehow held that a Texas law that significantly burdens adult access to lawful adult content warranted only rational-basis review. Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024).
Relying on a strained reinvention of this Court’s ruling in Ginsberg v. New York, 390 U.S. 629 (1968), the panel effectively read Sable, Reno, Playboy, and Ashcroft out of existence. By wishing away the constitutional constraints established in those cases, the Fifth Circuit’s decision grants Texas a free hand to force adult Texans to show their papers and surrender their privacy simply to access content protected by the First Amendment.
The Fifth Circuit got it wrong. With the smoke cleared and mirrors stowed, Texas’ law is what it is: a content-based restriction on speech. No reasonable reading of the statute or of the caselaw can justify a contrary conclusion. Because the law imposes a content-based burden on adult access to protected speech, “the answer should be clear”: It demands strict scrutiny. Playboy, 529 U.S. at 814.
The Fifth Circuit’s attempt to excuse its use of a less-exacting standard via a tortured interpretation of this Court’s precedent is not only unconvincing, but dangerous. Because if Texas’ law is allowed to stand—and with it, the Fifth Circuit’s revisionist reading of long-standing First Amendment law— similarly speech-restrictive statutes (and similarly enterprising jurisprudence) will soon proliferate. California, for example, is close to passing its own version. Seven other states already have.
Keeping children safe is important, no doubt. But the means used to achieve this worthy end matter, and the government must bear the burden of proving their constitutionality. As Justice Thomas wisely warned: “The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” Playboy, 529 U.S. at 830 (Thomas, J., concurring).
The First Amendment doesn’t permit shortcuts. Texas must prove its statute satisfies strict scrutiny. This Court should direct the Fifth Circuit to require Texas to do so.
Full Brief: Free Speech Coalition, Inc. v. Paxton