I have now finished reading Free Speech Coalition v. Paxton. This 6-3 decision upheld Texas's age-verification law to access pornographic materials online. Justice Thomas wrote the majority opinion and Justice Kagan wrote the dissent.
In many regards, this case is confounding. I think the Texas law is constitutional under any standard of review--rational basis, intermediate scrutiny, or strict scrutiny. And I think that Justice Kagan likely agrees on that point, though I doubt that her two colleagues would uphold the law under strict scrutiny. The only debate concerns the appropriate standard of review. I think the Fifth Circuit rightly found that this law is best reviewed with rational basis scrutiny. And I suspect that Justice Thomas agrees with the Fifth Circuit. Indeed, the first half of his opinion sounds as if the law will be reviewed deferentially.
Yet, the majority ultimately applies intermediate scrutiny, under something like the O'Brien test. Thomas probably needed to go down this path to hold five votes. On this point, I find myself in agreement with Justice Kagan. O'Brien seems like a very bad fit for the sort of law at issue. O'Brien is about conduct with speech elements. The Texas law does not implicate any conduct. Indeed, while I usually celebrate Justice Thomas's opinions, Paxton was not his finest moment. This is an area where Justice Kagan clearly has more expertise, and she shows it. Then-Professor Kagan did not write very much (sound familiar?), but she was a well-regarded expert on First Amendment law.
So what is going on here? Justice Thomas was trying to reorient Free Speech doctrine around text, history, and tradition. Or, Justice Thomas tried to Bruenify free speech doctrine, but I'm not sure it will work.
In Bruen, Thomas argued that Second Amendment claims are not reviewed with means-end scrutiny. And, Thomas claimed that this "Second Amendment standard accords with how we protect other constitutional rights," including the First Amendment. Specifically, for the government to meet its burden to restrict speech, it "must generally point to historical evidence about the reach of the First Amendment's protections." When I first read Bruen, I scratched my head with this sentence. Free Speech doctrine is a doctrinal mess. The Court has employed a series of different means-ends balancing test. Originalism is not really relevant to the the Free Speech clause.
In Free Speech Coalition, Justice Thomas, like in Bruen, was trying to ground the doctrine in text, history and tradition. At least with the Second Amendment, there was not much caselaw to apply. Heller was decided in what I've described as an "open field." But the Free Speech Clause is a thorny ticket with so much caselaw. I suppose that the fact that five members joined Thomas's opinion suggests that the Court is comfortable with changing course on Free Speech law. Then again, five members joined his Bruen opinion and jumped ship at an entirely predictable moment.
I blame Chief Justice Roberts (who else?). He should not have given this opinion to Justice Thomas. Indeed, for reasons that are unclear, Thomas took a shot at Roberts's majority opinion isn Williams-Yulee v. Florida Bar:
In Williams-Yulee v. Florida Bar, 575 U. S. 433 (2015), a bare majority held that a ban on the personal solicitation of campaign donations by candidates for judicial office survived strict scrutiny. But, only four Members of the majority thought that the statute triggered strict scrutiny to begin with.
Thomas has a hard time holding together a majority opinion on a difficult case. When he was given the Bruen majority, the Court had to clean it up barely a year later in Rahimi. I would have assigned this opinion to Justice Barrett or Justice Alito or really anyone else. Hell, Roberts could have assigned Kagan the majority opinion, to uphold this law under strict scrutiny, with Thomas and Alito concurring to say rational basis review should apply. I can imagine how much finessing this majority opinion took to cross the finish line. Roberts probably would take this one back.
So (at least for now) what is Thomas's approach: use history to determine what is the appropriate standard of review. If there is some long-standing, "traditional" prohibition, the Court should presume it is constitutional; and given that strict scrutiny is usually fatal, that sort of prohibition must be subject to a more deferential standard of review. States have long imposed some sort of age-verification system on pornography, so these sorts of law are not subject to strict scrutiny.
Here are all the ways that Justice Thomas refers to "tradition":
And petitioners concede that an in-person age verification requirement is a "traditional sort of law" that is "almost surely" constitutional. Tr. of Oral Arg. 17.
H. B. 1181 thus falls within Texas's traditional power to protect minors from speech that is obscene from their perspective.
Strict scrutiny therefore cannot apply to laws, such as in-person age-verification requirements, which are traditional, widespread, and not thought to raise a significant First Amendment issue.
Petitioners would like to invalidate H. B. 1181 without upsetting traditional in-person age-verification requirements and perhaps narrower online requirements. But, strict scrutiny is ill suited for such nuanced work. The only principled way to give due consideration to both the FirstAmendment and States' legitimate interests in protecting minors is to employ a less exacting standard.
Thomas also tries to bring some sort of means-ends balancing into the historical component. He speaks of "ordinary and appropriate means." That is sort-of like "necessary and proper"?
Instead, as we have explained, the First Amendment leaves undisturbed States' power to impose age limits on speech that is obscene to minors. That power, according to both "common sense" and centuries of legal tradition, includes the ordinary and appropriate means of exercising it.Scalia & Garner, Reading Law, at 192. And, an age-verification requirement is an ordinary and appropriate means of enforcing an age limit, as is evident both from all other contexts where the law draws lines based on age and from the long, widespread, and unchallenged practice of requiring age verification for in-person sales of material that is obscene to minors.
Justice Kagan, in dissent, expresses bewilderment about this approach.
The majority's opinion concluding to the contrary is, to be frank, confused. The opinion, to start with, is at war with itself.
See, I got in trouble for calling a Supreme Court justice "confused."
Kagan continues:
The usual way constitutional review works is to figure out the right standard (here, strict scrutiny because H. B. 1181 is content-based), and let that standard work to a conclusion. It is not to assume the conclusion (approve H. B. 1181 and similar age verification laws) and pick the standard sure to arrive there. But that is what the majority does. To answer what standard of scrutiny applies, the majority first spends four pages lauding age verification schemes as "common," "traditional,""appropriate," and "necessary." Ante, at 13–18. In other words, all over the place, and a good thing too. No wonder the majority doesn't land on strict scrutiny.
Kagan writes that the majority's approach seems backwards:
The analytic path of today's opinion is winding, but I take the majority to begin with a conviction about where it must not end—with strict scrutiny. The majority is not so coy about this backwards reasoning. To the contrary, it defends it.
Thomas sort of acknowledges the criticism:
Finally, the dissent claims that we engage in "backwards," results-oriented reasoning because we are unwilling to adopt a position that would call into question the constitutionality of longstanding in-person age-verification requirements. Not so. We appeal to these requirements because they embody a constitutional judgment—made by generations of legislators and by the American people as a whole—that commands our respect. A decision "contrary to long and unchallenged practice . . . should be approached with great caution," "no less than an explicit overruling" of a precedent. Payne v. Tennessee, 501 U. S. 808, 835 (1991) (Scalia, J., concurring). It would be perverse if we showed less regard for in-person age-verification requirements simply because their legitimacy is so uncontroversial that the need for a judicial decision upholding them has never arisen.
I think this is a Kavanaugh-like mode of reasoning about tradition. But I'm not entirely sure how it maps on the First Amendment. I think Thomas would determine the level of scrutiny based on tradition. This wasn't the Court's approach before. But it, apparently, is the approach now. Or at least until the Court walks it back.
I do have to commend Justice Kagan's dissent. This is vintage Kagan. It has all of her usual witticisms, combined with a deep knowledge of the subject matter. It was a bit of a breath of fresh air, as this last term has not been her best. She simply didn't write that much, and what she wrote was not really memorable. Moreover, her questions from the bench were not as tight as they had been in the past. I sense she is frustrated and perhaps annoyed at where the Court is. I also sense some discord with her progressive colleague. For example, it would have made so much sense for Justice Kagan to write the principal dissent in Casa. The former federal courts and procedure professor would have been uniquely suited to respond to another former federal courts and procedure professor. But instead, we got Justice Sotomayor.
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