The law requires web-based age verification on sites with at least one-third of their content devoted to adult sexual material. Now the Supreme Court will solicit arguments and briefs about the case.
My hot take is that it won’t fly, but that Texas can also potentially revise the law to make it pass.
The problem is that this is targeting websites serving non-porn material if the site also serves porn. Like, there’s porn on Reddit, for example. But this doesn’t say “we restrict access to minors just to porn”, but “we restrict access to the website”, where someone like Reddit can do finer-grained filtering. It’s hard, I think, to argue that this is the “least restrictive means” to solve the issue.
For a law that that restricts speech to pass the First Amendment, it has to pass strict scrutiny, and “least restrictive means” is one requirement of this.
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a “compelling state interest”. The government must also demonstrate that the law is “narrowly tailored” to achieve that compelling purpose, and that it uses the “least restrictive means” to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
The standard is the highest and most stringent standard of judicial review and is part of the levels of judicial scrutiny that courts use to determine whether a constitutional right or principle should give way to the government’s interest against observance of the principle. The lesser standards are rational basis review and exacting or intermediate scrutiny. These standards are applied to statutes and government action at all levels of government within the United States.
The ACLU lawyer references a “reasonable” criteria, and apparently that’s one element of the “rational basis” review, so I’m guessing that they’re attacking it on those grounds.
My hot take is that it won’t fly, but that Texas can also potentially revise the law to make it pass.
The problem is that this is targeting websites serving non-porn material if the site also serves porn. Like, there’s porn on Reddit, for example. But this doesn’t say “we restrict access to minors just to porn”, but “we restrict access to the website”, where someone like Reddit can do finer-grained filtering. It’s hard, I think, to argue that this is the “least restrictive means” to solve the issue.
For a law that that restricts speech to pass the First Amendment, it has to pass strict scrutiny, and “least restrictive means” is one requirement of this.
https://en.wikipedia.org/wiki/Strict_scrutiny
The ACLU lawyer references a “reasonable” criteria, and apparently that’s one element of the “rational basis” review, so I’m guessing that they’re attacking it on those grounds.