Balancing Act: Navigating First Amendment Rights and Online Content Regulation

In recent years, the regulation of explicit adult content online has become a pressing legal issue, particularly concerning age verification restrictions. The easy accessibility of adult content on the internet has sparked significant concerns over minors interacting with inappropriate and harmful material. Parents and guardians are particularly worried that exposure to lewd and inappropriate content at a young age could have harmful effects on children and their development. Advocates for stricter age verification laws argue that such measures are necessary to protect children from harmful content. Critics, however, contend that these laws could infringe upon free speech rights found under the First Amendment as well as pose privacy risks for users. Recent cases, such as NetChoice, LLC v. Paxton, 142 S. Ct. 1715, 1715-16 (2024), have covered these concerns, and have caused significant debate over the intersection of digital rights, freedom of expression, and the protection of minors, through raising important questions regarding what extent laws can regulate internet consumption without infringing on the First Amendment. This article examines the implications of these developments within the broader legal framework governing online adult content, underscoring the delicate balance between protecting minors from potential harm while safeguarding First Amendment rights. 

The current case that will be dissected, which covers this issue, is Network L.L.C v Paxton. To understand the case, it is first necessary to understand House Bill 20, which was enacted in Texas in 2021 [1]. The law pertains to age verification requirements, drafted with the intent of “restricting access to sexual material harmful to minors on an Internet website.” The Texas law outlines several requirements for adult content websites, citing numerous health warnings about pornography, its’ addictive tendencies, impairment of mental development, and how it increases demand for child sexual abuse images, amongst many other harmful effects pornography has. While these concerns about pornography and its effects are valid, many companies find laws like H.B. 20 and the potential restrictions it imposes to be a slippery slope into censorship and infringement on Americans’ First Amendment rights to free speech, expression, and press. 

In 2021, after H.B. 20 was passed in Texas, NetChoice and the Computer and Communications Industry Associated filed a lawsuit against the Attorney General of Texas, Ken Paxton [2]. The Plaintiff’s focus was to challenge specifically two provisions of the law as unconstitutional: section 7, which “prohibits viewpoint-based censorship of user's posts, except for context that incites criminal activity or is unlawful,” and section 2, which “requires platforms to disclose how they moderate and promote content, publish an “acceptable use policy,” and maintain a complaint and appeal system for this users.” After their initial suit, Network L.L.C originally obtained an injunction from a Texas district court. However, their victory was short-lived, as Paxton quickly appealed this decision [3]. After the plaintiff appealed the case, the U.S. Court of Appeals for the Fifth Circuit ruled that the age verification requirements were constitutional and did not violate First Amendment rights. Thus, Paxton secured a stay, temporarily pausing the enforcement of the lower court’s injunction while his appeal was being considered, allowing the law to continue to be enforceable. After, Network L.L.C petitioned the Supreme Court for a writ of certiorari, which was granted [4]. In August of 2024, the case was heard by the Supreme Court. This was not a victory for either side, as the judgment was vacated, and the case was remanded. The explanation given for the remand was that, as explained in the majority opinion issued by Justice Kagan, "neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms”[5]. Therefore, the case will return to lower courts. 

Although the Court declined to decide whether either law was constitutional, this was nonetheless considered a victory for First Amendment interests regarding large internet platforms and critics of laws that place age restrictions on websites. The Constitutional principles the Court set forth protect future laws that may seek to regulate or restrict how platforms select and present third-party content online, such as the Texas law at issue in these cases. 

Previous precedents set regarding these cases that the Court used in issuing their opinion were Miami Herald v. Tornillo, Pacific Gas & Electric Co v. Public Utilities Commission, Turner Broadcasting v. FCC, and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. In all of these cases, the question of whether a law violated the First Amendment was present, and the Supreme Court ruled that the laws in question in these cases, which, broadly speaking, restricted freedom of press or publication, did violate the First Amendment. Therefore, these cases helped the Supreme Court issue its majority opinion in Network L.L.C v Paxton, where it expressed limiting government authority in regulating speech for both private and public platforms. The case also drew on existing statutes, such as the Communications Decency Act and state laws aimed at preventing minors from accessing adult content. 

Furthermore, the Court held that applications of the Texas law to traditional social media or internet platforms were “unlikely to withstand First Amendment scrutiny” [6]. Though Justice Kagan described much of the majority’s First Amendment analysis as non-binding dicta, lower courts are likely to follow the entire majority opinion, including those portions setting out robust First Amendment principles and applying those principles to hold that the Texas law likely violates the First Amendment as applied to paradigmatic social-media functions. Thus, even though the Court did issue a remand and did not deliver an official decision on the case, the majority opinion issued is highly likely to have an impact on litigation that seeks to regulate or restrict how websites moderate content in the future, and lower courts are likely to use the precedent set in the majority opinion. 

This raises many questions regarding the scope of First Amendment protections online, particularly in the context of laws that seek to regulate other major online services. Even though in this case the particular issue had to do with access to pornography, it could impact a plethora of First Amendment rights in online platforms - such as online marketplaces, payment services, ride-sharing, direct messaging, or email. Moreover, some members of the Court also raised questions about how the First Amendment might apply differently to AI or other technology-assisted content moderation. These, and other questions, will certainly arise in future cases. 

Sources:

1. H.B. 20, 87th Leg., R.S. (Tex. 2021) 
2. Report from Supreme Court, 22-555 NETCHOICE, LLC V. PAXTON, (Sept. 29, 2023)(on file with the Supreme Court).
3. Press Release from Ken Paxton, Texas Attorney General, Attor­ney Gen­er­al Ken Pax­ton Wins After Pornog­ra­phy Com­pa­nies Sued Texas Over Age Ver­i­fi­ca­tion Requirements, (Mar. 8, 2024), https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-wins-after-pornography-companies-sued-texas-over-age-verification
4. NetChoice, LLC v. Paxton, https://www.scotusblog.com/case-files/cases/netchoice-llc-v-paxton/
5. MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL. v. NETCHOICE, LLC, DBA NETCHOICE, ET AL., 22-277, (2024)
6. Ari Holtzblatt, Allison Schultz, Seth Waxman WilmerHale, What's Next After Major First Amendment Win For Online Companies In Supreme Court's NetChoice Decision, (Jul. 8, 2024), https://www.jdsupra.com/legalnews/what-s-next-after-major-first-amendment-6455031/