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Free Speech Arguments

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The Free Speech Arguments Podcast brings you oral arguments from important First Amendment free political speech cases across the country. Find us on Spotify and Apple Podcasts.

Episode 23: Free Speech Coalition, Inc. v. Paxton

Free Speech Coalition, Inc. v. Paxton, argued before the Supreme Court of the United States on January 15, 2025. Argued by Derek L. Shaffer (on behalf of Free Speech Coalition, et al.), Brian H. Fletcher, Deputy Solicitor General of the United States (on behalf of the United States as amicus curiae), and Aaron Nielson, Solicitor General of Texas (on behalf of Ken Paxton).

Background on the case, excerpted from the introduction of the Brief for Petitioners:

Texas House Bill (H.B.) 1181 imposes requirements on commercial websites “more than one-third of which” are “sexual material harmful to minors”—a term that includes all sexually suggestive content, as might be found in romance novels or R-rated movies. The law requires a covered website to verify the age of every user, typically via government-issued identification. Entities conducting such verification may not “retain” users’ “identifying information,” but H.B. 1181 does not prohibit transfer of that information or impose any other protection against disclosure.  And while Texas insists that forcing users to endure chilling online privacy and security risks is necessary to protect minors from harmful sexual content, H.B. 1181 exempts the search engines and social-media platforms that are principal gateways for minors’ access to that very content.  Confirming Texas’s real aims, H.B. 1181 also requires covered websites to post stigmatizing, unscientific “[w]arnings” that condemn their content as harmful to health.

The district court preliminarily enjoined H.B. 1181, finding that the law is subject to strict scrutiny and likely to fail it under this Court’s governing precedent.  In particular, the court explained that H.B. 1181’s age verification requirement is materially identical to the Child Online Protection Act (COPA), 47 U.S.C. § 231, which this Court in Ashcroft held was subject to strict scrutiny and likely unconstitutional.  The Fifth Circuit agreed that H.B. 1181 is materially identical to COPA, but a divided panel held that it was not bound by Ashcroft because that decision contains what the majority termed “startling omissions.” The majority concluded that the proper level of scrutiny is instead rational-basis review, as applied in Ginsberg.  To justify its departure from Ashcroft, the majority reasoned that this Court there applied strict scrutiny to COPA only because Attorney General Ashcroft, represented by Solicitor General Olson, erroneously accepted strict scrutiny rather than urging mere rational-basis review in defense of the statute.

Question Presented:

This Court has repeatedly held that States may rationally restrict minors’ access to sexual materials, but such restrictions must withstand strict scrutiny if they burden adults’ access to constitutionally protected speech. See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 663 (2004). In the decision below, the Fifth Circuit applied rational-basis review—rather than strict scrutiny—to vacate a preliminary injunction of a provision of a Texas law that significantly burdens adults’ access to protected speech, because the law’s stated purpose is to protect minors.

The question presented is: Whether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults’ access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done.

Resources:

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Episode 22: TikTok Inc. v. Merrick Garland, argued before the Supreme Court of the United States on January 10, 2025.
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Episode 21: Bristol Myers Squibb Co. v. Secretary United States Department of HHS, consolidated under AstraZeneca Pharmaceuticals LP et al v. Secretary United States Department of HHS, argued before the U.S. Court of Appeals for the Third Circuit on October 30, 2024.
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Episode 20: Moms for Liberty – Wilson County, TN, et al. v. Wilson County Board of Education, et al., argued before the U.S. Court of Appeals for the Sixth Circuit on October 29, 2024.
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Episode 19: Central Maine Power Company, et al. v. Maine Commission on Governmental Ethics and Election Practices, et al., argued before the U.S. Court of Appeals for the First Circuit on October 9, 2024.
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Episode 18: Little, et al. v. Llano County, et al., argued en banc before the U.S. Court of Appeals for the Fifth Circuit on September 24, 2024.
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Episode 17: TikTok Inc. v. Merrick Garland, argued before the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024.
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Episode 16: NetChoice, LLC v. Bonta, argued before the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024.
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Episode 15: X Corp. v. Bonta, argued before the U.S. Court of Appeals for the Ninth Circuit on July 17, 2024.
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Episode 14: The Imperial Sovereign Court of the State of Montana v. Knudsen, argued before the U.S. Court of Appeals for the Ninth Circuit on June 4, 2024.
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Episode 13: Can You Be Punished for Sharing Publicly Broadcast Court Hearings (Somberg v. McDonald), argued before the U.S. Court of Appeals for the Sixth Circuit on June 12, 2024.
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Episode 12: Florida’s STOP Woke Act in Higher Education (Pernell v. Lamb), argued before the U.S. Court of Appeals for the Eleventh Circuit on June 14, 2024.
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Episode 11: National Republican Senatorial Committee, et al. v. Federal Election Commission, et al., argued before the U.S. Court of Appeals for the Sixth Circuit sitting en banc on June 12, 2024. 
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Episode 10: U.S. v. Sittenfeld, argued before the U.S. Court of Appeals for the Sixth Circuit on May 9, 2024
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Episode 9: Diei v. Boyd, argued before the U.S. Court of Appeals for the Sixth Circuit on May 2, 2024.
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Episode 8: Spectrum WT v. Wendler, argued before the U.S. Court of Appeals for the Fifth Circuit on April 29, 2024.
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Episode 7: Joseph W. Fischer v. United States, argued before the Supreme Court of the United States on April 16, 2024.
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Episode 6: U.S. v. Mackey, argued before the United States Court of Appeals for the Second Circuit on April 5, 2024.
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Episode 5: Gilliam v. Gerregano, argued before the Supreme Court of Tennessee on April 3, 2024.
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Episode 4: Gonzalez v. Trevino, argued before the Supreme Court of the United States on March 20, 2024.
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Episode 3: Murthy v. Missouri, argued before the Supreme Court of the United States on March 18, 2024.
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Episode 2: NRA v. Vullo, argued before the Supreme Court of the United States on March 18, 2024.
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Episode 1: Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, argued before the Supreme Court of the United States on February 26, 2024
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