If you’ve studied First Amendment law, it’s impossible not to experience déjà vu while reading the briefs in Free Speech Coalition v. Paxton, a

The huge stakes in a new Supreme Court case about pornography

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2025-01-03 05:00:03

If you’ve studied First Amendment law, it’s impossible not to experience déjà vu while reading the briefs in Free Speech Coalition v. Paxton, a Supreme Court case the justices will hear on January 15 about online pornography.

That’s because the Texas law at the heart of Free Speech Coalition is in all relevant respects identical to a federal law the Supreme Court blocked in Ashcroft v. ACLU (2004). (That federal law was meant to keep minors from being able to view pornography, and the Texas law attempts to do the same, albeit through a slightly different mechanism.) If the justices take seriously some of the more aggressive arguments Texas makes to defend its law, they could eliminate longstanding free speech protections for sexual content.

Even the United States Court of Appeals for the Fifth Circuit, which upheld the Texas law, conceded that the two laws are “very similar” — though the Fifth Circuit did, in an unusual act of defiance by a lower court, conclude that it was not bound by the Supreme Court precedent established in Ashcroft and was free to uphold the Texas law anyway.