Supreme Court Justice Elena Kagan ripped the court’s majority decision Friday upholding age-verification requirements for pornography websites.
In a scathing dissent joined by Justices Sonia Sotomayor and Kentanji Brown Jackson, Kagan accused the majority decision in Free Speech Coalition v. Paxton of diluting First Amendment protections for sexually explicit speech.
“The majority’s opinion concluding to the contrary is, to be frank, confused. The opinion, to start with, is at war with itself,” she wrote, because the majority opinion initially claims that age verification had nothing to do with the First Amendment, before ultimately it “gives up that ghost.”
Kagan argued that the Texas law requiring websites that host pornography or other sexually explicit materials to verify their users’ ages before allowing them access had restricted the access adults have to protected speech. While the rule was designed to prohibit minors from accessing explicit materials, many adults would likely be unwilling to hand over their personal information, such as a passport, to websites hosting pornography.
Kagan explained that the rule called for a higher level of scrutiny because it was not simply “incidentally” restrictive, as Justice Clarence Thomas—who wrote the majority opinion—claimed.
“Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so. That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny,” she wrote.
Under intermediate scrutiny, Texas was not required to demonstrate that it had selected the option that was least restrictive for free speech. Kagan argued that this was not sufficient.
“A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children,” she wrote.
“That is what we have held in cases indistinguishable from this one. And that is what foundational First Amendment principles demand.”
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