I have now finished reading Free Speech Coalition v. Paxton. This 6-3 decision upheld Texas's age-verification law to access pornographic materials online. Justice Thomas wrote the majority opinion and Justice Kagan wrote the dissent.
In many regards, this case is confounding. I think the Texas law is constitutional under any standard of review--rational basis, intermediate scrutiny, or strict scrutiny. And I think that Justice Kagan likely agrees on that point, though I doubt that her two colleagues would uphold the law under strict scrutiny. The only debate concerns the appropriate standard of review. I think the Fifth Circuit rightly found that this law is best reviewed with rational basis scrutiny. And I suspect that Justice Thomas agrees with the Fifth Circuit. Indeed, the first half of his opinion sounds as if the law will be reviewed deferentially.
Yet, the majority ultimately applies intermediate scrutiny, under something like the O'Brien test. Thomas probably needed to go down this path to hold five votes. On this point, I find myself in agreement with Justice Kagan. O'Brien seems like a very bad fit for the sort of law at issue. O'Brien is about conduct with speech elements. The Texas law does not implicate any conduct. Indeed, while I usually celebrate Justice Thomas's opinions, Paxton was not his finest moment. This is an area where Justice Kagan clearly has more expertise, and she shows it. Then-Professor Kagan did not write very much (sound familiar?), but she was a well-regarded expert on First Amendment law.
