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Nico Perrino: I guess we're calling this a new series, ��ݮ��ƵAPP���� Reacts, but it's in partnership with So to Speak: The Free Speech Podcast. Those of you who listen to the podcast should know me. I'm the host, Nico Perrino. I'm FIRE's Executive Vice President. We thought it might be a good idea, on this last day of the Supreme Court term in which we got a First Amendment decision, to have some of my ��ݮ��ƵAPP���� colleagues join me in a conversation about that decision. The case is Free Speech Coalition v. Paxton, and it deals with a Texas law that requires age verification in order to access adult material online. 

The Supreme Court said that it met the constitutional bar, that the law is constitutional, and so we are going to discuss that here today. Joining me is Ronnie London, FIRE's General Counsel; Bob Corn-Revere, FIRE's Chief Counsel; and Will Creeley, FIRE's Legal Director. Will, let's start with you before we open it up to Ronnie and Bob for their opinions on the decision, and we open it up to the broader webinar for their questions about the case. Can you tell us how this case found its way into the courts and how it wound up at the Supreme Court?

Will Creeley: Yeah, Nico, I can’t. I would say it’s a joy to be here, but it’s not. I wish we were here under different circumstances. But let me tell you the tale. So, Texas passes this law, HB 1181, back in June of ’23, and it was quickly challenged. In August of that year, the district court enjoins it on First Amendment grounds. Let me explain what the law did. It had two main parts: it had an age verification requirement, which is what was before the court in some sense today. We’ll get to that.

Nico Perrino: And that means you have to turn over some sort of ID, right? In order to have some access.

Will Creeley: It requires everybody, before you attempt to access – I’m gonna quote from it – the websites that have more than 33% material that is defined as sexual material harmful to minors. We’ll get to that in a second, too. You have to verify that somebody coming to your website to access that material is 18 or over. You can do that by either digital identification, government-based identification, or commercially reasonable method that relies on public or private transactional data. 

The website is required not to retain any identifying information of the individual, but as Free Speech Coalition pointed out in the briefing, transmission of that information is not prohibited, and there’s no monitoring or reporting requirement for what you do with that information. And then there’s another component of the law, which does not figure into these proceedings, thank goodness. It was so blatantly unconstitutional that both, joined by the district court, and the Fifth Circuit said, “That’s fine.” But I always kinda get a kick out of this requirement. 

It mandated that websites that met this definition, that had this amount of material on it, would have to put up on this landing page a warning, in 14-point font or larger, a series of statements. For example, “Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.” And these warnings were required to be put on the websites and were attributed to the Texas Health and Human Services Commission even though the commission had not, in fact, made those findings or announcements. 

So, district court, considering both of these components of the law, enjoins them says, “The age verification is a content-based burden on adult access to speech that’s protected for adults, applies strict scrutiny, says the state has other ways of achieving the aim of keeping this kind of material out of the hands of minors, and enjoins it on First Amendment grounds.” And the warning component is compelled speech. 

The state appeals to the Fifth Circuit, and the Fifth Circuit issues what I think all of us on the call found to be a pretty astounding opinion where, essentially, the Fifth Circuit wipes out rulings that, for the past 25-plus years, have established that when you’re dealing with a content-based restriction on speech, including speech online, you apply strict scrutiny. And instead, the Fifth Circuit applied what’s known as rational basis review, just that the legislation at issue is rationally calculated to further that governmental interest. It says it passes rational basis review, essentially writing out decades of Supreme Court case law, and this kind of blew our minds. 

I was amazed at the hocus pocus, smoke and mirrors of the Fifth Circuit's reasoning here. It really did seem to be this audacious act of judicial reinterpretation. They simply dispensed with rulings that were directly on point that would seem directly analogous here that the court has handed down over the past, again, 25 years. Cases that Bob was involved with. So, I’m gonna let Bob take it from there, but it gets to the court because the Free Speech Coalition, which is an industry group, an adult content industry group, appeals to the Fifth Circuit, up to the Supreme Court. Supreme Court grants cert. 

Question presented, just so we have it here, is whether applying rational basis review to this content-based restriction on speech was an error and whether the Fifth Circuit should have just applied strict scrutiny, like the court’s precedents would have commanded it to do. ��ݮ��ƵAPP���� weighed in as an amicus both at the Fifth Circuit panel level and with the Supreme Court, urging it to apply strict scrutiny. And that’s how we got to today’s opinion.

Nico Perrino: I’m going to turn it over to Bob and Ronnie here in a second. I just wanna urge those who are in attendance that if you do have questions, you can go to the bottom of your screen. You’ll see a Q&A button. You can click on that and ask your questions, and we’ll get to those in a moment. I just have a clarifying point that, Bob, maybe you can help us with before you give your takeaway on the Supreme Court’s decision. You have content that is obscene as to minors but is constitutionally protected for adults. Often we consider this pornography, right? 

Adults have a constitutional right to access pornography, but minors do not. And so, what Texas is trying to do here is say, “Well, we were trying to prevent minors from accessing this content, and the way that we want to do it is through age verification, which necessarily then requires everyone who wants to access this content to prove who they are or what their age is in order to get there.” And that creates a burden on what is constitutionally protected speech for adults, but not for minors. Now, if you want to follow up on that and then get to the court’s decision.

Bob Corn-Revere: That’s correct. And one added concept is obscenity as a whole, which is speech that can be prohibited if it goes way too far. But this is in a lesser category of harm to minors, where you’re right. It’s pornography; it’s not obscenity. It’s speech and material that adults have a constitutional right to access. And the decisions over the years, including one that I argued in the court, had uniformly held that the strictest level of scrutiny for passing constitutional review had to apply and that these kinds of regulations fell short of strict scrutiny. 
And so, what the court in this case did was reinterpret those decisions and say, “Well, maybe not. Maybe age verification simply provides a slight burden, and that you only have to use this intermediate level of scrutiny that it passes.” As Justice Kagan’s dissent pointed out, this really reinterprets all of those decisions which applied to various media, including phone sex services, or so-called dial porn, which was also applied in the cable television context, and finally in the internet context. 

The court had always held that these are subject to strict scrutiny, and here it sort of reinterprets all of that. One of the ways in which Justice Thomas managed to do that, for the majority, was to say that this speech in this category isn’t really fully protected. It's in some sort of intermediate level, where it's only partially protected, and therefore you can impose these kinds of burdens. And so, it really is a new reading of how these kinds of restrictions apply.

Nico Perrino: Ronnie, do you have any thoughts about the decision?

Ronnie London: Yeah, to me it seems like the objective was to say, "Hey, look, we check verification in physical stores. That seems to have worked perfectly fine for decades. The internet is mature enough now, and we want to impose the same rule." How do we get there in a way that at least – well, I don't even wanna say makes facial sense, because I have some problems with whether the decision does that or not, but at least makes some degree of facial sense and also doesn't do any damage to any doctrine beyond that in the area of obsceneness to minors or sexual speech? It just seems like a goal-oriented opinion in a variety of ways. 

Bob Corn-Revere: Yeah, I agree with that. And let's take this premise of the decision, and it ran throughout the majority opinion, that we can do this online because we use age verification in a variety of contexts in the brick-and-mortar world. And I think that's where a lot of the analysis breaks down. You really can't compare the two, because in the brick-and-mortar world, the way it works is if you have a young-looking person walk into a store and wanna buy a girly magazine, for example, when he comes up to the counter, he may get carded. Or to prevent him from perusing that material, maybe they will have what are called blinder racks that cover the lower two-thirds of the cover so that you don't have that direct exposure. 

This imposes a requirement at the point of entry for everybody. So, you have to show your papers at the digital door to be able to get access to the speech. And it's even worse, because as Will pointed out earlier, the way this law works, it applies to any online site where one-third or more than one-third or one-third or less of the material is supposed adult content, which means that you have this gatekeeping function for speech, that the majority of the speech there is perfectly fine even as to minors. 

And so, you have this multiple-layered restriction on speech that doesn't apply in the brick-and-mortar world. And then, even beyond that, it imposes restrictions on privacy. And the court expressly says there is no First Amendment right to access information without identification, which is a really vast expansion of the government's authority in this area.

Will Creeley: Let me jump in on that, just for our good friend Gary in the comments. He asks us to weigh in on whether the Supreme Court, as he puts it, has established a new category of partially protected speech, and you both have identified it. And this is one of those decisions. I don't know if you folks feel this, but whenever I read a First Amendment decision that I know I'm gonna be reading and arguing against for years and years to come, it almost feels like moving into a new house. I'm rereading paragraphs to kind of test where the squeaky stairs are. And this one, I can tell, is gonna bug me for a long time, this idea. 

And I'll quote from Thomas's majority opinion here: "The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification), while only incidentally burdening protected activity (ultimately accessing that material)." So, the idea is, again, this kind of disaggregation of expressive expression of receiving information and putting that information out, that if you are trying to access material that could be obscene as to minors, you're engaged in unprotected conduct until you show an ID. It scares the hell out of me.

Ronnie London: Well, not only that, if you have this new category of accessing material obscene as to minors without verifying age and say it's not constitutionally protected, I don't understand why intermediate scrutiny applies. Never mind why strict scrutiny doesn't apply. If it's unprotected, all bets are off.

Bob Corn-Revere: Yeah, and that's one of the points that the dissent makes. 

Nico Perrino: So, we've talked a little bit about scrutiny here. Just as a reminder, rational basis scrutiny is the lowest level of scrutiny that the courts can apply to a government regulation. Strict scrutiny is the highest, and that's often what's applied or what should be applied when there's a content-based regulation. That is, a regulation that has to look at the content in order to regulate. And here, you need to look at the content to know it's sexually explicit content or content that would be obscene as to minors. 

The question before the court was whether the rational basis was the right standard to apply in assessing this regulation. And what the court ultimately did in Thomas’s decision was say, “No, it’s not.” So, it overturns the Fifth Circuit on that, if I’m not mistaken, and says instead: intermediate scrutiny, which is like a middle level of scrutiny, applies, and that the law passes intermediate scrutiny. Right, Bob?

Bob Corn-Revere: Well, largely, that’s true, yeah. The court overturned the Fifth Circuit’s rational basis, one of the few blessings we can count from this opinion. Although it didn’t for a minor who walks into a store and wants to buy a girly magazine, that still is subject to rational basis, but for putting these blanket restrictions that also affect adults in a general way, that’s subject to intermediate. And the other thing that Justice Thomas did in the majority opinion – which I guess we should count as something of a blessing too – is to try and, although it was confusing, try and create sort of a narrow category or narrow reading of what harmful-to-minors material they are talking about. 

So, he distinguishes indecency, which is like the FCC seven dirty words, that kind of thing, that was regulated in the Communications Decency Act in the Reno decision, and says, “That's still subject to scrutiny.” But this category, which doesn't include things like R-rated movies, is what we're talking about. So, he tries to apply a relatively narrow reading of what speech falls into this category, but in the end, I don't know what he was talking about. 

Will Creeley: And that uncertainty will proliferate. This is the pronouncement from on high, the court handing down the opinion. Now you make sense of it, lower courts. You make sense of it, websites. You make sense of it, states.

Bob Corn-Revere: Well, I think we have to comply with it. How do you count?

Will Creeley: That's right. 

Bob Corn-Revere: And how do you count what is one-third material on your website and classify that based on content? Can that be segregated? And access to that segregated area only be subject to age verification? There are so many confusing moving parts that the court does not try to explain.

Will Creeley: Quick point on that last one. So, the classic consideration from early days of obscenity law is putting Voltaire on the flyleaf. So, you've got ostensibly obscene or erotic material, whatever, but then you slap a page of Voltaire in it. I wonder now, if you're a website that you've got, boy, we’ve got all this content. We’re way over 33%. Quick, put the complete works of William Shakespeare in there. What else can we do? All the Google Maps, just get it on there, the encyclopedia.

Bob Corn-Revere: This is the very question that the court ducked in 2004 in the Ashcroft decision, when it was trying to figure out, "What does it mean to address the work as a whole in the internet context?" It couldn’t answer that question. And now we're going to regulate websites in Texas based on measuring percentage of content that falls into one content category versus another and then imposing these age verification requirements on it. It is really an impossible burden.

Nico Perrino: Joshua has a question here. He asks, "What changes to the law, if any, would satisfy ��ݮ��ƵAPP����? I agree with the intent of the law and would like to see greater protections for minors but also value constitutionally protected speech. How can both be satisfied?" I think this speaks a little bit to Justice Kagan's dissent, where she said, “I disagree with the majority. We shouldn't have applied intermediate scrutiny. This should have been strict scrutiny.” But even at that standard, the law might have been constitutional. Is that something that ��ݮ��ƵAPP���� can get on board with, or do we think there's really no avenue in which you burden constitutionally protected speech for adults that it would satisfy strict scrutiny? Yeah, Ronnie.

Ronnie London: It's funny because when Justice Kagan says that, she – I don't know, inadvertently, purposefully – elides the fact that when you're applying strict scrutiny, you have to use the least restrictive means. She doesn't characterize tailoring under strict scrutiny that way. And so, if you are faithfully applying least restrictive means, you look at such things as parental controls and the other devices that are available out there for restricting minors’ access at either the device level or at the parental-child relationship level. And the state would have the burden to prove that those don't work. 

And so, there are potentially ways to do this that are not as restrictive of speech as requiring showing your ID, identifying yourself, tying yourself to the specific type of adult content that you like, and risking that that's going to be disclosed either voluntarily by the website or inadvertently due to hacking.

Nico Perrino: But I think that what critics might argue on the other side is that, yeah, those means exist, but they aren’t effective.

Bob Corn-Revere: Well, that's why it was disappointing to see so little discussion in the decision of those alternatives. It was very limited both in the majority opinion and, to a lesser extent, in the dissent. There was a lot of discussion in the majority opinion about how much the internet has changed; all these things have happened. Well, yeah, the internet has changed in a variety of ways, including the parental controls that were in a very developmental stage back when the earlier decisions happened 20 years ago. 

But now the ways in which the parents can participate with minors and regulate what they do has magnified, so that you have various means at the device level, at the service level that can serve these interests without restricting adults by having this blanket restriction that everyone has to show their papers to get access to online materials.

Nico Perrino: Well, when you say, "Show your papers," I think that kind of speaks to this anonymous attendee, and we'll say you said you were gonna answer this question live. I also have a thought on it. The anonymous attendee says, “For the non-legal layperson – I think I'm the only non-lawyer on this call, so I think I qualify there as well – they ask, what is the normative argument against this ruling? What is the best argument to make to the average American who may think this ruling doesn't restrict their rights, whether or not they watch porn?” 

I had tweeted about this earlier, and I said, “The Supreme Court now says that states can pass laws that force you to turn over your ID if you wanna watch or access adult material.” What also happened this week, as some of you might be aware, is that Apple, Google, Facebook were revealed to have this giant data breach, with 16 billion user credentials released to Lord knows where. And so now…

Bob Corn-Revere: And there you have it, right?

Nico Perrino: Yeah, and so now, if you're adults who want to…

Bob Corn-Revere: One of the bedrock protections under the First Amendment is the protection for anonymous speech. That goes back to the founding. It's one of the reasons why the Federalist Papers were written under pseudonyms. And so, there is a strong and robust body of law protecting anonymous speech. 

And so, a lot of pushback against the idea that you have to reveal who you are to engage in a conversation, to engage in speech and that's particularly true when the speech is of a sensitive nature, one that you might have some repercussions if it were known that you were receiving or providing a certain kind of speech, as in the case of adult speech. Here, you now have, by state law, a requirement that people identify themselves before they can be part of that conversation. 

And, Nico, as you just said, we know that these digital services are subject to data breaches. They're not secure. And surveys, time and again, are finding that up to 70% of the population does not want to have to provide their identification to be able to participate in speech online. And if that were not enough, we see state legislatures trying to expand this kind of restriction beyond just this category of adult material to all kinds of areas of participating in social media and other kinds of online resources. And so, what is the foot in the door is subject to being expanded to undermine a very basic First Amendment protection.

Will Creeley: Yeah, where our friend Alison Boden, who is the executive director of the Free Speech Coalition, in their statement said that pornographers are the canary in the coal mine, and that goes exactly to Bob's point. Folks might say, "This is just porn. Who gives a damn?" We fight there at that margin so it doesn't get any further. And it's easy to pick off the speech that people might say, "I don't care about it." Although I think the profit of the industry suggests that a great many people care about it, actually, in practice. 

But to Bob's point exactly, if you start allowing the government the power to impose age gates on adult access to protected information, forget all Thomas’s “well, the act of attempting to access the information doesn't protect it.” That's garbage. If you allow the government to start putting up walls around adult access to protected speech, you're carving out a hole in the First Amendment, and the legislature will try and make it bigger and bigger. You fight those battles there so you don't have to fight them elsewhere. And Sabrina, our old colleague – actually, if you don't mind me, Nick, I’ll just jump in here – she asked a really interesting question. 

She says, “Do you think the court ignored the issues with age verification and how age verification is really, as she puts it, identity verification?” And I think that’s absolutely correct. I think it's one of the arguments we made as amicus at the panel stage, that there are Americans out there who either don’t have identification or don’t have credit cards or simply just don’t wanna give them up in order to be able to speak and be spoken to. Those are real folks.

Nico Perrino: Marty asks here. . . .

Ronnie London: And never even for people that have IDs – I mean, when I speak on this, I try and ask, "Who lives in a state that has these age verification laws?" And I get the hands that go up. And I'm like, "All right, now how many of you regularly consume porn?" And every single hand goes down. And that statistically cannot be correct. That’s absolutely not true, but it illustrates that nobody wants to disclose even that they access this type of material, never mind create a record that you went to bondage.com, and then you went here, and then you went there, and it’s all associated with your ID that you logged on to those sites.

Nico Perrino: Bob, if you don’t mind, we’ve got a lot of questions here. I wanna be able to get to a few of them, but I’ll give this one to you because I think it speaks to something that you were talking about earlier. Marty says that you said the mandated speech about the harms of porn cites the Texas Commission, which did not issue such a finding. Please comment on the court's assumption about the need to protect children without citing any findings in its ruling.

Bob Corn-Revere: That is a matter of a tradition that the court has accepted. Even if you go back to its decision in the 1960s, where it established sort of the harm-to-minors standard, it said at the time that maybe sociological surveys wouldn’t bear this out, but it relied on more of a common-sense notion of what sexual material might be harmful to children's development. And it basically then began to fashion what was a variation of the obscenity test for adults but still said that there were met protections. There were the right by minors to access sexual materials that were more age-appropriate. And so, the obscenity test is sort of hedged about with caveats that it is offensive as to minors, or it has serious value as to minors. And so, it has not required a specific sort of scientific finding that the government has an interest in shielding children from sexual materials of a certain nature.

Nico Perrino: One attendee says, in the 2017 case Packingham v. North Carolina, the court warned against broadly restricting access to the internet as the “modern public square.” Does the Paxton ruling undermine that principle by allowing identity-based access barriers to lawful online speech? Will, you're nodding your head.

Will Creeley: It's a foot in the door, as Bob said. It's a foot in the door. Again, this disaggregation of speech that up until you show your papers, you're not really engaged in any kind of protected conduct. That should scare the hell out of everybody.

Ronnie London: Yeah, the door thing is important. There are a few questions here asking about, “Well, will this spill over to age verification for social media? Will this spill over to access to materials in public libraries?” I think that the answer is if you'd have asked me last week whether we would have this for online content, I would have said, “Optimistically, well, no.” We've got decades of precedent that would prevent that from being the case. Now we have precedent that it's not the case anymore. 

So, I think the foot in the door is really important because it allows the expansion. That being said, I think if you wanna try and find a silver lining in this decision, they hopefully did it in a way that shouldn't have spillover effects beyond obscene-as-to-minors content, because it's tied very closely to that particular concept. So, this should not – if it's being applied principally, and it may or may not be – but if it's being applied principally, it shouldn't allow age verification for, for example, social media. Now, on the other hand, for content in public libraries that people are going to argue is obscene as to minors, then yes. You can ask for ID and seek parental consent there under the logic of this decision.

Will Creeley: Are you going to have to show ID to get into the library? Could I pass a state law now that says if adults want to access material in this library that could be considered obscene as to minors, they have to show an ID? I don't know. We're on rocky footing there.

Bob Corn-Revere: Or everyone who enters the library has to show an ID entering the door.

Will Creeley: Yeah, that's right. 

Bob Corn-Revere: Somewhere in the library, maybe a third of the material is stuff that we think kids shouldn't see. 

Will Creeley: There you go.

Bob Corn-Revere: That’s really the question. And, as Sabrina, I think, very carefully, very helpfully summarized it, age verification is identity verification. We had touched on that before, but I think that thread really captures it. And it really is a dangerous path when you start saying that people have to identify themselves to get access to constitutionally protected speech.

Nico Perrino: Philip asks, “Why is it that stare decisis means little to nothing to this court?” The idea being here, as you guys have spoken about, there have been something like four other cases that deal with the same or very similar questions, and it seems like they're going in a different direction in this case from those previous cases.

Ronnie London: Well, it's not limited to this decision, and it's not limited to this issue or even this particular constitutional right. Why does this court seem like it's less bound by stare decisis? I'm not going to answer that, because I think it's in the individual personalities and proclivities of some of the justices. I will say, however, the court has, when it's been convenient, construed stare decisis either implicitly or explicitly in ways that wouldn't seem like a faithful application. Even going back to the abortion decisions that created the trimester decision, the trimester framework, where they said they were doing stare decisis, but instead they were really doing something new that departed from prior practice.

Nico Perrino: But have we seen something like this, Bob, in the First Amendment context, where the court has so many decisions on a certain question and then, two decades later, decides to roll back those existing First Amendment protections by a lower standard?

Bob Corn-Revere: We have seen other cases in which the court has tried to slice a piece off of previous precedents, trying to narrow it in certain ways. And the way in which Justice Thomas did that in this opinion was to say, incorrectly, I think, that the court had never before dealt with the pure question of age verification, as if that were something different from what was happening in the previous decisions. He also described those previous decisions not as involving a screening mechanism, age verification to get access to speech. 

He described them as speech bans, including in the decision that we talked about earlier, that I argued in the Playboy case, where Justice Thomas, ironically enough, was the fifth vote for striking down the regulations in that case. He said that he signed on to an opinion there that said that if you burden speech that is protected as to adults, that is the same thing as a ban. Whereas in this case, his whole opinion is focused on the idea that this isn't a ban, it's just a burden on adult speech. So, you only have to apply intermediate scrutiny. It's really hard for me to understand what the distinction is, and I think that was pointed out very well in Justice Kagan's dissent.

Nico Perrino: Will, it looks like you had something you wanted to say, and then I have a question for you. 

Will Creeley: There's a couple of good questions here that I wanna answer. I think they're related. I'll give you my spin. I'm curious to hear all of yours. Mr. Rick Jones asked, “I said I remember that when this went to the Supreme Court, one of the things I read about was whether the Texas law actually worked. Pornhub, one of the plaintiffs, shut down access in Texas to their site in order to comply with the law. But I live in Texas, and it took me less than a minute to find other huge sites that were and still are readily accessible here. Is there also a problem with selective enforcement?”

I would phrase the problem a little bit differently. And this is, again, to borrow a point made very well by our friends at the Free Speech Coalition, that when you impose these kinds of content-based burdens, when you impose these kinds of functional restrictions on speech, which should invoke First Amendment strict scrutiny. I don't think the burden/ban distinction is nearly as solid as Thomas seems to think it is. I think that was a bit of jiggery-pokery, so to speak.

But when you impose that kind of burden, the desire to see this kind of protected content doesn't go away. So, what do people do? They go to sites that are outside of the country that are offering different materials that are perhaps not as regulated as the United States adult content industry. And you start getting into some dark and potentially illegal places in this country/places, and that's what you're seeing. So, you're driving the traffic elsewhere.

Bob Corn-Revere: You use a VPN.

Will Creeley: You use VPNs. I think there are ways that folks will evade this, or they will access unregulated content from overseas or elsewhere that invites its own host of policy problems. And there's another related question from an anonymous attendee who asked, and I respect it, we did not ask you for your age, but many comments here, your identity is your own. “Could this ruling spark a patchwork of state laws that create digital borders for accessing content?” I just lost it.

Nico Perrino: Sorry. I resolved it. I said that you were answering it live, and I clicked the button, so that made it disappear.

Will Creeley: Basically, is this gonna create a patchwork of state laws where, depending on where you are in the country, you'll have different access to lawful, protected material for adults? And I think the answer is clearly gonna be yes, but I'd be curious for everybody else's take.

Nico Perrino: Can I just say something about that Rick Jones question?

Will Creeley: Sure.

Nico Perrino: I found it interesting, and in Justice Kagan's dissent, she cites to some of the findings from the district court that said that it could cost at least $40,000.00 for every 100,000 verifications, or else pay penalties as the law requires of $10,000.00 per day. So, unless you buy this very expensive tool to verify identity, you risk $10,000.00 a day. And so, I think you could see a lot of companies go out of business, potentially, unless the market becomes more robust and the price goes down.

Ronnie London: Well, and webcams, and smartphones, and social media have democratized the production of this so that individual performers and artists can have their own site, and they aren't necessarily going to be in a position to purchase that kind of age verification mechanism or software in order to keep their sites afloat.

Nico Perrino: Bob, did you wanna respond to the question that Will teed up about a patchwork of different laws in different states? It somewhat reminds me of the mini CDAs, or mini Communication Decency Acts, that were sprouting up across the country in the '90s and early 2000s.

Bob Corn-Revere: That's right. In 1996, when Congress passed the Telecommunications Act, which included the Communications Decency Act, a number of states, even after the Supreme Court had struck down that law, had tried to adopt their own mini versions of that. And not only were those laws found to be unconstitutional under the First Amendment, they were also found to violate the Commerce Clause because they imposed differential burdens between different states on interstate commerce.

We may see that kind of patchwork, and, in fact, we're already seeing, in real time, that kind of patchwork spring up. And it's going to depend on how similar they are to the Texas law and whether or not they're going to be vulnerable to First Amendment challenge. But I think they're also going to impede interstate commerce in much the same way.

Nico Perrino: Josh asked – hey, Josh – do you know of any other instance where the court has used intermediate scrutiny in a First Amendment case?

Bob Corn-Revere: Well, sure. In cases involving symbolic speech, the court has applied intermediate scrutiny where it's basically regulating conduct. In commercial speech cases, the court uses intermediate scrutiny to govern regulations of advertising. But in pure speech cases, and particularly in content-based speech cases like this is, and everybody tends to acknowledge this is a content-based restriction, then strict scrutiny has been the rule.

And the magic trick that Justice Thomas pulls in trying to distinguish this is to say that we're not really regulating the content. We're regulating the physical access without ID of partially unprotected speech. And so, he tries to transmogrify what is a pure speech, content-based question into something else.

Nico Perrino: David asks, "Is the court going to keep sweeping content-based statutes into the 'incidental effect on speech bucket'?"

Will Creeley: Look out. We'll be here to fight against it, but this is a little bit too loosey-goosey for my comfort. As I was saying to these folks earlier, I think there's gonna be a lot of play in those joints. What do you mean we're regulating speech? We're just putting an incidental burden on it. What do you mean we're regulating speech? It's not protected until you've done X or Y. The censors are creative. We're gonna see applications of this.

Nico Perrino: Tom has a question here. It's a little bit longer, but I wanna focus on the first part of his question. He says, “Is sexual speech considered obscenity speech?” Is sexual speech obscene, Bob?

Bob Corn-Revere: No, it isn't. And the Supreme Court made that quite clear in 1957 in the Roth decision, when Justice Brennan wrote that sex and obscenity are not synonymous. And that's why you have a three-part test for what is obscenity because sexuality by itself is not enough, which is why you have a broad category of sexually oriented speech that is fully protected under the First Amendment but doesn't fall off the edge of the First Amendment Earth once it is deemed to be obscene. This category of harmful-to-minors tries to create this sort of middle category of speech that can be regulated for minors but not prohibited as to adults. But after today, we know it can be burdened as to adults.

Nico Perrino: Ryan asks a good question. He says. . . .

Will Creeley: Wait, before we go any further, can I just quote from that? Because it's got one of, I think, the best lines about the subject that any jurist has ever written. “The portrayal of sex in literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest in mankind through the ages. It is one of the vital problems of human interest and public concern." I think that's very well put. Thank you for indulging me.

Bob Corn-Revere: And that goes back to 1957. 

Nico Perrino: Wasn't there an editorial writer who one time said that, “Censorship is the greatest urge in humans, with sex being a distant second”?

Bob Corn-Revere: That was Nat Hentoff.

Nico Perrino: Nat Hentoff.

Will Creeley: Cheers to Nat Hentoff. 

Nico Perrino: I think actually Nat wrote it in Free Speech for Me but Not for Thee, but he quoted some other writer.

Bob Corn-Revere: It attributed it to someone.

Will Creeley: I'm gonna raise two glasses tonight. One to Jeffrey Douglas, a long-time now board chair of the Free Speech Coalition who deserved a better fate today. And also, two, to the late great Nat Hentoff, who used to send commentary to ��ݮ��ƵAPP���� on our press releases via fax machine. So, we would be in the office, and we'd hear the fax machine start going. We'd say there's only one person who's sending us a fax, and that is Mr. Nat Hentoff. It was an honor to receive those faxes, and I miss them. 

Nico Perrino: And Nat Hentoff would have been 100 years old this month on June 10th. So, happy 100th birthday to Nat Hentoff.

Will Creeley: Right on.

Nico Perrino: Ryan has a really good question here. He says, "Speaking of social media, I see people focusing on websites specifically made for porn, but adult content is on mainstream social media websites like X, Reddit, and others. How do you think this affects those?” So, the Texas law says that if you have more than 33% of your content that would be obscene as to minors, then you're implicated by this law, but does that mean the law is maybe underinclusive? It doesn't really serve a compelling government interest if you could just go on X and find breasts, for example.

Bob Corn-Revere: Well, that is the problem, isn't it? How do you even count what is ⅓ of the material on a website like Reddit? It really is administratively impossible to even determine which sites are subject to this. And even say, “Look at Amazon.” Certainly, it has the universe of books available on there, but it also has quite a lot of books that would qualify and other materials that would qualify under this law. 

Now, who's going to go in and do the inventory and figure out who's subject to this and who isn't? And who's going to be surprised by finding out that their site suddenly is subject to this law? It is so poorly drafted in that regard, even if you accept everything else about the standard, just how you make this law work is really a difficult proposition.

Will Creeley: And the law, the text explicitly reaches social media, a commercial entity that knowingly and intentionally publishes or distributes material on an internet website, including a social media platform, more than one-third of which is sexual material harmful to minors. Interesting, it just strikes me that it says a commercial entity. There's a market out there, a niche for a non-profit.

Ronnie London: So, actually, there was a whole Sixth Circuit decision when they passed the adult record-keeping, and the plaintiffs were people who engaged in private exchanges of classified ads and material. It wasn't for a commercial purpose, and the law was struck down as to that.

Nico Perrino: What is it? And Will, you read the law there. What's the difference between harmful to minors and obscene as to minors? Is there any difference, or is that what they're just . . . ?

Bob Corn-Revere: They’re the same.

Nico Perrino: Okay.

Ronnie London: On which point, I would caution, simply saying, "There are breasts on social media," that's not gonna be enough. And the decision at least does us the courtesy of making that clear that we're not talking about even just R-rated material. It's going to have to be more explicit than that to qualify as obscene as to minors.

Will Creeley: You might even say that you'll know it when you see it. I don't know if it does do us a favor of making it more clear. He says, “Not PG-13 or R-rated movies.” Our friend Lee Rowland over at NCAC, who joined us on the brief, said, “Maybe Justice Thomas and I are watching different R-rated movies.”

Nico Perrino: Close-up here. I wanted to keep folks for no more than 45 minutes. I would just ask, where does this leave us on these age verification laws for adult websites? I know there have been some other lower court decisions elsewhere that have struck down these laws on First Amendment grounds. What's gonna happen to those decisions? What can we expect across the country now?

Bob Corn-Revere: Well, we will see efforts by various states to adopt these kinds of laws, and they will have to be tested in their specific facts just how much of a burden they do impose on people, and they may differ from the Texas law or not. 

Nico Perrino: But I think there are 21 states that have passed laws like these, according to the majority decision.

Bob Corn-Revere: We will all see efforts at mission creep in trying to expand the boundaries of what's considered to be harmful to minors. Just as today's decision leaves that category rather uncertain, we see this in various other contexts, such as in library regulations, where they try and classify books involving LGBTQ issues as being obscene to minors or even obscene. And so, we will see efforts to expand both the subject matter that is covered and the ways that these laws can be applied.

Will Creeley: Yeah, let me just add. Each Supreme Court decision – most of them regarding the First Amendment – is like a tool. And once you've introduced it into the ecosystem, people are gonna find creative and new ways to use it. If it's a decision that's helpful for folks who defend expressive rights like us, we're gonna put that thing to work. If it's a decision that allows for some openings, some heretofore unexplored arguments, or some old arguments now given new life, or some doors that had seemed closed cracked open a little bit, folks are gonna try and push. So, we are gonna have to be on our guard, and we will redouble our efforts.

Nico Perrino: We got to about 20 questions or so. We still have 17 open. I apologize to everyone for not being able to get to your questions. But if you enjoy conversations like these, where you get to just ask us questions and we respond, we do member calls every month, and we essentially hop onto the webinar. And whatever free speech question you have, it doesn't have to be on Free Speech Coalition v. Paxton, for example. We answer. So, the next one should be coming up in the middle of July.

We already did our June member call. You can get access to these by becoming a ��ݮ��ƵAPP���� member, going to and making a donation of $25.00 or more. And then we host those conversations, if you can attend in person, on our member portal on our website. I would also encourage you to check out So to Speak: The Free Speech Podcast. We're gonna be posting this conversation to that feed in a couple of hours here. You can subscribe on any of your major podcast apps, as well as on Substack.

I wanna thank you all for attending this. We're gonna try and do more of these. As I mentioned at the top, we're gonna start calling it ��ݮ��ƵAPP���� Reacts. So, when there's big news in the free speech world, it doesn't necessarily need to come from the Supreme Court. We'll get a group of ��ݮ��ƵAPP���� staff on to give our brief reaction, followed by your questions that we will do our best to answer. So, Ronnie, Bob, Will. Thanks for doing this, and thanks for everyone attending.

Will Creeley: Thank you.

Bob Corn-Revere: Thank you.