In Other SCOTUS First Amendment News, It Also Just Heard Oral Argument Over Yet Another Texas Law Censoring The Internet

Free Speech

from the last-century-i-mean-last-week-news dept

I’m not crazy about writing about a Supreme Court oral argument if the Court is just going to make a fool out of me by doing something they know is wrong and completely divorced from the argument they heard, which laid before them everything they needed to reach a decision that adhered to constitutional precedent.

And yet here I am writing again about another oral argument, this time in the case of Free Speech Coalition v. Paxton, which the Court heard last week. This case addresses the law that Texas passed requiring the age-gating of certain Internet sites, even though previous Supreme Court precedent said that such efforts were unconstitutional. This law challenges at least two previously established tenets: that adult expression is ordinarily protected, except under limited circumstances, and that age-gating the Internet is not. And this challenge implicated yet one more: that the law was subject to strict scrutiny. But all these things went out the window when the Fifth Circuit got its hands on it, and, using rational basis scrutiny instead, decided that the law was just fine, thereby tossing the injunction the district court had put on the law. As a result, this unconstitutional law has now already been in effect causing constitutional harm.

Eventually, though, the challenge made its way to the Supreme Court, and what is pending before it is yet another choice for whether it would rather stick with clear precedent or take yet another huge bite out of the First Amendment’s previously clear protections because, like with TikTok, there is something about the subject matter that the government chose to regulate that it doesn’t like either. With TikTok it was because it believed the Chinese were doing something sinister with our data (which, even if true, does not mean we should trash the First Amendment and its protections for expression). Whereas with this case because it involves icky adult expression, the scary Internet, and children who need to be thought of—even though the Court has already considered cases involving such things and decided the Constitution still applies. What oral argument revealed is that a lot of the Court wants to change its mind and plunge us all into a world where the First Amendment now protects much less than it used to.

But such a rollback was not supposed to be on the table right now. As Justice Sotomayor reminded, as the argument seemed to be going off the rails having to defend the very notion that precedent meant the First Amendment applied here, the only question before the Court was whether the Fifth Circuit erred in applying only rational basis scrutiny to stay the district court’s injunction.

Unfortunately, what should have been an easy, “yes,” did not seem to be so easy for at least a number of justices to accept. The Court asked FSC, who was challenging the law on behalf of a group of affected sites, what would happen if it decided the Fifth Circuit had erred. Its decision staying the injunction would be vacated, came the answer. The injunction would come back into effect, and the Fifth Circuit would take another crack at reviewing the matter while applying the correct strict scrutiny standard—which of course probably means we’ll all be back here when the Fifth Circuit inevitably gets it wrong again, but nevertheless vacating the earlier Fifth Circuit decision would still be the right way to proceed and at least then maybe it would at least be willing to leave the injunction in place while SCOTUS reviews it.

But some justices, like Justice Kavanaugh, kept wanting to return to the merits now to decide whether the law was constitutional, because vacating would restore the preliminary injunction, and preliminary injunctions are supposed to be (at least partially) predicated on the likelihood of success on the merits. So surely we need to consider the merits now too to address that likelihood, wondered Kavanaugh out loud.  No, argued FSC, pointing out that the district court had found a likelihood of success, and that was just on a preliminary record. If more is needed to sustain a permanent injunction later, then that’s what the rest of the litigation is for. The point of a preliminary injunction is just to press pause on everything, so that if the challenged act is unconstitutional, no harm will accrue while we sort everything out, and it can inherently only be based on a best guess given what is known at that stage of the litigation. We continue to litigate before an injunction becomes permanent to make sure we’re right, but at that point the decision whether to make the injunction permanent will be based on a fuller record and much more briefing.

What Kavanaugh and others seemed to be doing, again (because it happened in TikTok by not issuing an injunction to give it time to hear the case properly), was trying to short circuit the normal path a constitutional challenge takes. And as we learned with TikTok we take these shortcuts at our peril. We can only hope that there are at least five votes not to make the same mistake again here. These issues underlying the case here are too important for the Supreme Court to summarily dispense with at such a premature stage of the challenge that this moment is.

Filed Under: 1st amendment, 5th circuit, age verification, free speech, injunctions, rational basis, strict scrutiny, texas
Companies: free speech coalition