Amicus Curiae Brief — Free Speech Coalition, Inc., et al., Petitioners v. Ken Paxton, Attorney General of Texas

No. 23-1122

In the Supreme Court of the United States

_______

FREE SPEECH COALITION, ET AL., PETITIONERS,

V.

KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY

GENERAL FOR THE STATE OF TEXAS, RESPONDENT.

_______

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______

BRIEF OF AMICI CURIAE

STATE LEGISLATORS, AMERICAN FAMILY

ASSOCIATION, INC., AND AFA ACTION, INC., IN

SUPPORT OF RESPONDENT

_______

TREY DELLINGER

COUNSEL OF RECORD FOR AMICI CURIAE

American Family Association, Inc.

AFA Action, Inc.

108 Parkgate Drive

Tupelo, MS 38801

662-821-2024 ext. 523

trdellinger@afa.net

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Table of Authorities ................................................... iii

Interest of the Amici Curiae .......................................1

Summary of the Argument .........................................3

Argument .....................................................................4

I.

Children are exposed to sexually

graphic content online to an

unprecedented degree. ................................4

II.

The First Amendment accords

lesser protection to sexually

graphic content, allows prohibiting

children’s access to it, and allows

prohibition of obscenity. ..............................6

III.

This Court should reject Petitioner’s

facial challenge to H.B. 1181. ................... 10

A. This Court disfavors facial First

Amendment challenges and has upheld

laws that use civil enforcement to

regulate, rather than ban, content by

restricting children’s access, or that

address widespread commercial

dissemination of sexually graphic

content. .................................................... 10

B. Premature facial challenges in the

internet context create an unworkable

challenge for the Court. .......................... 12

ii

C. H.B. 1181 is not overly broad. ................ 13

D. Reno and Ashcroft are not controlling. .. 19

E. H.B. 1181 is the least restrictive, effective

legislative remedy. .................................. 21

Conclusion.................................................................. 22

iii

TABLE OF AUTHORITIES

Cases

Alexander v. United States,

509 U.S. 544 (1993) ................................................... 15

Ashcroft v. Am. C.L. Union,

542 U.S. 656 (2004) ........................5, 13, 14, 16, 19-23

Broadrick v. Oklahoma,

413 U.S. 601 (1973) ................................. 11, 17, 18, 19

Butler v. State of Mich.,

352 U.S. 380 (1957) .....................................................9

Chaplinsky v. State of New Hampshire,

315 U.S. 568 (1942) ............................................... 9, 17

City of Lakewood v. Plain Dealer Publ'g Co.,

486 U.S. 750 (1988) ................................................... 16

Com. v. Sharpless,

2 Serg. and Rawle 91 (1815) .......................................7

Commonwealth v. Holmes,

17 Mass. 336 (1821) .....................................................7

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) ....................................... 16, 17, 19

Ginsberg v. State of N. Y.,

390 U.S. 629 (1968) .....................................................9

Gitlow v. People of State of New York,

268 U.S. 652 (1925) .....................................................9

iv

Knowles v. State,

3 Day 103 (Conn. 1808) ...............................................7

Massachusetts v. Oakes,

491 U.S. 576 (1989) ................................................... 15

Miller v. California,

413 U.S. 15 (1973) ................................... 10, 13, 14, 20

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) ................................... 11-12, 19

New York v. Ferber,

458 U.S. 747 (1982) ................................................... 11

People v. Ruggles,

8 Johns. 290, 1811 WL 1329 (N.Y. Sup. Ct. 1811) .....7

Pope v. Illinois,

481 U.S. 497 (1987) ................................................... 15

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................................... 17

Red Lion Broadcasting Co. v. FCC,

395 U.S. 367 (1969) ................................................... 12

Reno v. Am. C.L. Union,

521 U.S. 844 (1997) ............................................. 19-20

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819 (1995) ................................................... 17

Sable Commc'ns of California, Inc. v. F.C.C.,

492 U.S. 115 (1989) ................................................... 16

v

Stanley v. Georgia,

394 U.S. 557 (1969) ................................................... 17

United States v. American Library Assn., Inc.,

539 U.S. 194 (2003) ................................................... 16

United States v. Bennett,

24 F. Cas. 1093 (C.C.S.D.N.Y. 1879) ..........................8

United States v. Hansen,

599 U.S. 762 (2023) ................................................... 11

Winters v. New York,

333 U.S. 507 (1948) ............................................. 11, 15

Young v. Am. Mini Theatres, Inc.,

427 U.S. 50 (1976) ..................................................... 18

Constitutional Provisions, Statutes and Rules

U.S. Constitution Article III ..................................... 12

U.S. Constitution

First Amendment .............................1, 3, 4, 6, 9-21, 23

Other Authorities

The Age Verification Providers Association, US State

age verification laws for adult content ................... 5-6

Anthony G. Amsterdam, The Void-For-Vagueness

Doctrine in the Supreme Court, 109 U. of Pa. L. Rev.

67 (1960) .................................................................... 10

vi

Donna I. Dennis, Obscenity Law and the Conditions

of Freedom in the Nineteenth-Century United

States, 27 Law & Social Inquiry 369 (2002) ........... 6-8

FightTheNewDrug, Why Today’s Internet Porn is

Unlike Anything The World Has Ever Seen ..............5

John S. Harrington, The Evolution of Obscenity

Control Statutes, 3 Wm. & Mary L. Rev. 302

(1962) ...........................................................................8

King James Bible

Matthew 18:2-6 .....................................................2

Proverbs 22:6 .........................................................2

Psalms 127:3 .........................................................2

Thessalonians 4:3-5 ..............................................2

Letter from John Adams to Benjamin Rush

(Feb. 2, 1807) ...............................................................2

Rhiannon Williams, The US now hosts more child

sexual abuse material online than any other country,

MIT Tech. Review, Apr. 26, 2022................................5

Texas House Bill 1181 ...... 2-4, 6, 10, 13, 14, 16, 18-23

1

INTEREST OF THE AMICI CURIAE 1

Amici curiae (listed in the Appendix hereto) are

current and former members of state legislative

bodies who sponsored and/or championed legislation

protecting their states’ children from being exposed to

graphic sexual content available on commercial

websites.

Additional amici curiae are the American Family

Association, Inc. and AFA Action, Inc. (collectively

“AFA Action”). The mission of AFA Action is to inform

and mobilize voters and government officials to align

public policy with biblical and constitutional

principles. Our vision is to see a society of citizens

successfully preserving life, liberty, and the ability to

pursue happiness.

AFA Action would show the free speech clause of

the First Amendment as originally understood did not

encompass the production and distribution of sexually

explicit material, and certainly not its dissemination

to minors. This is demonstrated by the consistent

legal prohibition of such material in the period

immediately following the ratification of the First

Amendment through the middle of the twentieth

century. 2

These legal prohibitions are also informed by

amici affirms that no counsel for a party

authored this brief in whole or in part, and that no person other

than amici or their counsel contributed money intended to fund

preparing or submitting this brief.

1 Pursuant to Rule 37.6,

2

See supra Argument section II.

2

longstanding and widely accepted cultural and

religious principles. For example, the King James

Bible, a primary source of legal, moral and political

education and inspiration throughout much of our

country’s history, teaches: “For this is the will of God,

even your sanctification, that ye should abstain from

fornication. That every one of you should know how to

possess his vessel in sanctification and honour; Not in

the lust of concupiscence . . . .” 3 The Bible likewise

teaches that children are a gift from God, and we are

commanded to love them, protect them, and lead them

on the right path, so as not to cause them to stumble. 4

The widespread exposure of children to hardcore

pornography in America today is antithetical to the

historical and traditional customs and laws of our

country.

In support of Texas’ House Bill 1181 (“H. B. 1181”),

3 1

Thessalonians 4:3–5.

Psalm 127:3, Proverbs 22:6, Matthew 18:2–6. The Founders had

great respect for the Bible as a source of truth, instruction and,

even, public policy. So states John Adams, with particular

emphasis on sexual matters, including “ogling”:

4

The Bible contains the most profound Philosophy, the

most perfect Morality, and the most refined Policy, that

ever was conceived upon Earth. It is the most Republican

Book in the World, and therefore I will still revere it. The

Curses against Fornication and Adultery and the

prohibition of every Wanton glance or libinous ogle at a

Woman, I believe to be the only System that ever did or

ever will preserve a Republick in the World.

Letter from John Adams to Benjamin Rush, (Feb. 2, 1807) (on file

with

the

National

Archives),

https://founders.archives.gov/documents/Adams/99-02-02-5166.

3

Pet.App.169a–175a, which seeks to protect children

from the scourge of pornography and is, therefore,

consistent with these customs and laws, the

undersigned submit this amicus curiae brief.

SUMMARY OF THE ARGUMENT

Some twenty years ago, four justices of this Court

would have upheld against a facial First Amendment

challenge a federal law that provided criminal

penalties for commercial entities that published

sexually graphic material harmful to minors on their

websites. The law provided an affirmative defense if

the website employed a reasonable method to verify

that the user was an adult. Five justices disagreed,

and the federal law was never implemented. The

intervening years have seen an explosion of hardcore

internet pornography, routinely exposing children at

shockingly young ages. Several states, including

Texas, took the Court’s prior rulings into account,

stepped into the breach, and passed smart state laws

requiring pornographic websites to use age

verification and, if they don’t, impose civil penalties

rather than criminal punishment.

Texas’ H.B. 1181 is very different than laws this

Court has struck down via facial First Amendment

challenge. It applies only civil penalties, not criminal

fines or imprisonment. It only regulates children’s

access to harmful sexually graphic material. It is not

a ban or a prior restraint. It does not suppress any

expression of ideas, nor does it discriminate against

any viewpoint. It prohibits the commercialized remote

sexual stimulation of children, which is more conduct

than speech. H.B. 1181 does not target individualized

4

communication

between

adults,

but

widely

disseminated, sexually graphic content accessible by

children. Applied to the internet of today, in which

children’s social media “feeds” are inundated with

unsolicited sexualized material, it is essentially a

regulation of a broadcast medium, for which this

Court has permitted more robust regulation. Indeed,

the internet of today poses a risk of exposing children

to sexual material that is orders of magnitude greater

than the broadcast media of yesterday. As the risk is

greater, so the Court’s tolerance of regulation should

be greater.

In sum, unlike the laws at issue in prior cases

before this Court, H.B. 1181 provides children with

desperately needed protection without threatening

core First Amendment values. These considerations

tip the balance in favor of upholding the

constitutionality of H.B. 1181.

The judgment of the Court below should be

affirmed.

ARGUMENT

I. Children are exposed to sexually graphic content

online to an unprecedented degree.

Twenty years ago, this Court was asked to rule on

the constitutionality of federal legislation that made

it a crime for a commercial entity to allow children to

access sexually graphic material on its website

without employing reasonable age verification. In a 54 decision, the Court struck down that federal law,

finding that it was overbroad and that parent-

5

initiated, user-side filtering software was a less

restrictive alternative. Ashcroft v. Am. C.L. Union,

542 U.S. 656, 666–673 (2004).

In the intervening time, online pornography has

exploded. As a result, children today are victimized by

sexually graphic content online like never before.

“The US hosts more child sexual abuse content

online than any other country in the world,” with the

US accounting “for 30% of the global total of child

sexual abuse material.” Rhiannon Williams, The US

now hosts more child sexual abuse material online

than any other country, MIT Tech. Review, Apr. 26,

2022, https://www.technologyreview.com/2022/04/26/

1051282/the-us-now-hosts-more-child-sexual-abusematerial-online-than-any-other-country/.

“Today, porn sites receive more website traffic in

the U.S. than Twitter, Instagram, Netflix, Pinterest,

and LinkedIn combined. … Studies show that most

young people are exposed to porn by age 13 . . . .”

FightTheNewDrug, Why Today’s Internet Porn is

Unlike Anything The World Has Ever Seen,

https://fightthenewdrug.org/why-todays-internetporn-is-unlike-anything-the-world-has-ever-seen/.

(emphasis added).

To stem the tide of filth destroying the innocence

of their states’ children, lawmakers from at least

nineteen (19) states have acted, passing legislation

requiring commercial websites to verify users’ age

before granting them access to sexually graphic

content. US State age verification laws for adult

content, THE AGE VERIFICATION PROVIDERS

6

ASSOCIATION, https://avpassociation.com/4271-2/ (last

visited Oct. 29, 2024).

Now the Court is once again asked to rule on one

such law duly passed by the democratically elected

representatives of the people of Texas to protect

children from internet porn.

Texas’ H. B. 1181 is neither a criminal law nor a

prior restraint. It is a viewpoint-neutral civil

regulation of sexually graphic content that expresses

no ideas. It prevents harm to children while

maintaining adult’s access. Thus, it threatens no core

First Amendment interests. The ruling of the court

below should be affirmed.

II. The First Amendment accords lesser protection to

sexually graphic content, allows prohibiting

children’s access to it, and allows prohibition of

obscenity.

As originally understood, the First Amendment

did not prevent legislators from prohibiting the public

distribution of sexually graphic material. Contrary to

the recently popular historical revisionist view,

Anthony Comstock did not “invent the concept of

obscenity in American law or governance” in the

1870s. Donna I. Dennis, Obscenity Law and the

Conditions of Freedom in the Nineteenth-Century

United States, 27 Law & Social Inquiry 369, 382

(2002).

English common law had punished obscenity since

at least the 1727 conviction of Edmund Curll for antiCatholic writings. Id.

7

In 1808 the Supreme Court of Errors of

Connecticut declared, “Every public show and

exhibition which outrages decency, shocks humanity,

or is contra bonos mores, is punishable at common

law.” Knowles v. State, 3 Day 103, 103 (Conn. 1808).

In 1811, the Supreme Court of New York stated

that “[t]hings which corrupt moral sentiment, as

obscene actions, prints and writings . . . have . . . been

held indictable . . . .” People v. Ruggles, 8 Johns. 290,

294–295, 1811 WL 1329, *3 (N.Y. Sup. Ct. 1811).

In 1815, Pennsylvania’s Supreme Court held that

“Any offence which, in its nature and by its example,

tends to the corruption of morals, as the exhibition of

an obscene picture, is indictable at common law.”

Com. v. Sharpless, 2 Serg. and Rawle 91 (1815), 1815

WL 1297, at *1 (Pa. 1815) (emphasis in original).

In 1821 the Supreme Judicial Court of

Massachusetts upheld the conviction of a man for

intending to corrupt “the morals as well of youth as of

other good citizens of said commonwealth” by

publication of “a certain lewd, wicked, scandalous,

infamous and obscene printed book . . . .”

Commonwealth v. Holmes, 17 Mass. 336, 336–37

(1821).

In 1824, New York officials prosecuted a vendor of

the same obscene book. Dennis, supra, at n. 14.

Antebellum jurists and treatise writers, such as

Thomas Cooley and Francis Wharton, applied the law

of nuisance and obscene libel to punish expression

that tended to further indecency or corruption, and

reflected the view that such expression was not

8

protected by liberty of speech and press. Dennis,

supra, at 383, n. 16 and accompanying text.

Many state legislatures codified these common law

prohibitions against obscenity in the period following

the ratification of the Bill of Rights. Id. at 384.

Vermont was first in 1821, followed by Connecticut in

1834 and Massachusetts in 1835, ultimately leading

to passage of obscenity-control statutes in 20 states by

the end of the Civil War. Id. Congress followed with

the first piece of federal obscenity control legislation,

the 1842 Tariff Act banning importation of “indecent

and obscene” images, and in 1865 banned obscenity in

the mails. Id. “Judges and treatise writers uniformly

portrayed these statutes as legitimate exercises of the

state’s expansive police powers to promote morality

without considering their impositions on freedom of

speech or freedom of the press.” Id.

Thus the 1873 Comstock Act passed by Congress

did not appear out of an otherwise libertine air as

revisionists suggest. Id.

By 1879 American courts had begun to apply the

“Hicklin test,” adopted from English law, under which

a publication was considered obscene if “the tendency

of the matter charged as obscenity is to deprave and

corrupt those whose minds are open to such immoral

influences, and into whose hands a publication of this

sort may fall.” United States v. Bennett, 24 F. Cas.

1093, 1104 (C.C.S.D.N.Y. 1879). See also John S.

Harrington, The Evolution of Obscenity Control

Statutes, 3 Wm. & Mary L. Rev. 302, 303 (1962),

https://scholarship.law.wm.edu/wmlr/vol3/iss2/4.

Thus, for about the first 150 years of our Nation’s

existence, American jurisprudence found no free

9

speech problem with statutes that protected children

from being exposed to sexually graphic publications.

Against this backdrop the Court correctly stated in

Chaplinsky v. State of New Hampshire that “[t]here

are certain well-defined and narrowly limited classes

of speech, the prevention and punishment of which

have never been thought to raise any Constitutional

problem. These include the lewd and obscene . . . .” 315

U.S. 568, 571–72 (1942).

This area of constitutional law became more active

when, in 1925, the Court incorporated the Bill of

Rights into the Fourteenth Amendment, making the

First Amendment applicable to the states for the first

time. Gitlow v. People of State of New York, 268 U.S.

652, 666 (1925).

The Court held in 1957 that the First Amendment

protected an adult against criminal prosecution for

acquiring an erotic publication unfit for children.

Butler v. State of Mich., 352 U.S. 380, 381–383 (1957).

But the Court nevertheless made abundantly clear

in 1968 that states could criminally punish

dissemination to minors of a publication that was

harmful to them, even if the publication did not meet

the test for adult obscenity. Ginsberg v. State of N. Y.,

390 U.S. 629, 637 (1968) (criminal conviction of

operator of lunch counter who sold so-called “girlie”

magazine containing photographs of nude women to

16-year-old did not violate First Amendment).

In 1973 the Court laid down the now-familiar

obscenity standard, making clear that obscene content

may be prohibited in keeping with the First

10

Amendment. Miller v. California, 413 U.S. 15, 24

(1973).

III. This Court should reject Petitioner’s facial

challenge to H.B. 1181.

A. This Court disfavors facial First Amendment

challenges and has upheld laws that use civil

enforcement to regulate, rather than ban,

content by restricting children’s access, or

that

address

widespread

commercial

dissemination of sexually graphic content.

The cases referenced in section II were, in effect,

“as applied” challenges to criminal prosecutions

involving definite, known content, such as a single

book or collection of photographs. In time, the Court

confronted “facial” challenges to criminal prosecutions

for publication or possession of indecent or obscene

material. Such cases presented fundamentally

different considerations.

The threat of criminal prosecution under vague

criminal statutes targeted at unprotected speech can

sometimes chill protected speech. Few people are

willing to risk criminal prosecution to be the test

case. 5 On the other hand, such statutes may punish

certain categories of speech, such as obscenity,

5 This rationale of facial First Amendment challenges originated

in criminal cases applying the “void for vagueness” doctrine.

Anthony G. Amsterdam, Note, The Void-For-Vagueness Doctrine

in the Supreme Court, 109 U. of Pa. L. Rev. 67, 68, n. 4 and 70 n.

16 (1960).

11

without offending the First Amendment. Winters v.

New York, 333 U.S. 507, 510 (1948).

To protect free speech, the Court accorded

plaintiffs standing to challenge such vague criminal

statutes on their face, not just as applied to a

plaintiff’s particular speech. Broadrick v. Oklahoma,

413 U.S. 601, 611–12 (1973).

However, the Court recognized that such facial

challenges could harm legitimate interests, so they

face a heavy burden and will succeed only where the

challenger shows that the statute’s overbreadth is real

and substantial “judged in relation to the statute's

plainly legitimate sweep.” 413 U.S. at 615; see also

Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024)

(same). “Even in the First Amendment context, facial

challenges are disfavored, and neither parties nor

courts can disregard the requisite inquiry into how a

law works in all of its applications.” Id. at 2409.

“Because it destroys some good along with the bad,

[i]nvalidation for overbreadth is strong medicine that

is not to be casually employed.” United States v.

Hansen, 599 U.S. 762, 770 (2023). First Amendment

facial challenges are to be used “only as a last resort.”

New York v. Ferber, 458 U.S. 747, 769 (1982).

“[C]ourts usually handle constitutional claims case

by case, not en masse.” 144 S. Ct. at 2397. The Court

has criticized facial challenges as speculating about

the future application of a law and short-circuiting the

democratic process. Id. “This Court has therefore

made facial challenges hard to win.” Id.

12

B. Premature facial challenges in the internet

context create an unworkable challenge for the

Court.

Justice Barrett emphasized in Moody just how illsuited facial First Amenment challenges are in the

internet context, commenting that “dealing with a

broad swath of varied platforms and functions in a

facial challenge strikes me as a daunting, if not

impossible, task.” Id. at 2409 (Barrett, J.,

concurring). 6

The factual complexion of facial challenges in the

internet context makes the Court’s task even harder

than with a typical facial challenge involving more

traditional media. Because of the much larger range

of potential factual applications, the burden for those

bringing facial challenges is essentially unworkable.

The “differences in the characteristics of new

media justify differences in the First Amendment

standards applied to them.” Moody, 144 S. Ct. at 2411

(Jackson, J., concurring) (quoting Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969)).

“Faced with difficult constitutional issues arising in

new contexts on undeveloped records, this Court

should strive to avoid deciding more than is

necessary.” Id. at 2412.

Justice Thomas has stated that, because the Court’s

constitutional authority under Article III of the Constitution is

limited to deciding “cases or controversies” between parties, it

lacks the constitutional authority to decide facial challenges. 144

S. Ct. at 2412.

6

13

The Court should reject Petitioner’s invitation to

rush to judgment. Once H.B. 1181 has a track record

of implementation, and a body of “as applied”

challenges develop in the lower courts, the Court will

be better equipped to judge future constitutional

challenges that come before it.

C. H.B. 1181 is not overly broad.

H.B. 1181 is not overly broad, because most of the

website content it would bar children from accessing

are “plain examples” of obscenity, entitled to no First

Amendment

protection.

And,

its remaining

applications to non-obscene material do not offend the

First Amendment because it is a civil regulation

protecting children from widely available sexually

graphic content, not a criminal ban or prior restraint.

i. The vast majority of H.B. 1181’s potential

applications are constitutional because they

apply to plain examples of obscenity.

As Respondent demonstrates, much of the

material on Petitioner’s websites qualifies as “plain

examples” of obscenity for adults. Resp.42 (comparing

Miller, 413 U.S. at 25, with ROA.506–08, 538–39).

In Ashcroft, four justices would have held the law

at issue constitutional. Justice Breyer, writing for

himself and two of the four dissenters, 7 noted that the

Justice Scalia, the fourth dissenter, would not have applied

strict scrutiny but considered the law at issue constitutional

because its target was more conduct than speech. 542 U.S. at

676. The law applied to commercial entities engaged in “the

7

14

law in issue used the Miller test for obscenity, the only

difference being the addition of the term “for minors”

in each element. Id. 542 U.S. at 679–680. Congress’

intent was to restrict access to commercial

pornography, and only rare borderline instances of

that kind of material are not obscene under the Miller

test. Id.

Like the federal law at issue in Ashcroft, H. B.

1181 also mirrors the Miller test, adding “with respect

to minors” to each element. Pet.App.4a. H. B. 1181 is

also clearly intended to apply to commercial

pornography. Likewise, H. B. 1181 applies primarily

to commercial pornographic websites, the vast

majority of which are obscene, and only in rare cases

will the material not be obscene under Miller.

The same rationale applies here. Except for rare

borderline cases, the vast majority of H.B. 1181’s

potential applications are constitutional, because they

embrace content that is obscene and proscribable

under the First Amendment.

ii. H.B. 1181’s applications to non-obscene

content are constitutional because it is a

civil regulation, not a criminal ban or prior

restraint, which protects children from

being exposed to widely available, intrusive,

sexually graphic content.

Facial

challenges

have

only

rarely

been

sordid business of pandering by deliberately emphasizing the

sexually provocative aspects of their non-obscene products, in

order to catch the salaciously disposed [which is] constitutionally

unprotected behavior.” Id.

15

entertained regarding civil regulations of speech. The

burden for the challenger in such cases is especially

great because the chilling effect is diminished when

no criminal prosecution is involved. See Winters, 333

U.S. at 515 (“The standards of certainty in statutes

punishing for offenses is higher than in those

depending primarily upon civil sanction for

enforcement.”). Between 1915 and 1960, only one

Supreme Court case found a civil enforcement statute

void for vagueness. Amsterdam, supra, at 70, n. 16.

Because the rationale of facial challenges is rooted

in the void for vagueness doctrine, which itself arose

in the context of criminal prosecutions, it is

unsurprising that the Court’s subsequent facial First

Amendment challenge cases have typically involved

criminal statutes. See, e.g., Pope v. Illinois, 481 U.S.

497 (1987) (facial challenge in the context of a criminal

obscenity prosecution); Massachusetts v. Oakes, 491

U.S. 576 (1989) (facial challenge to criminal

prosecution involving nude child photographs);

Alexander v. United States, 509 U.S. 544, 546 (1993)

(facial challenge to criminal asset forfeiture in

connection with criminal obscenity and RICO

prosecution).

Conversely, following the rationale of Winters,

laws enforced through civil penalties should be

treated more leniently when subjected to facial

challenge than criminally enforced laws, as the

deterrent chilling effect on speech is far less when only

civil penalties are involved.

Moreover, the Court has recognized that mere

regulations of speech present less of a First

16

Amendment concern than total bans or prior

restraints. See Sable Commc'ns of California, Inc. v.

F.C.C., 492 U.S. 115, 127 (1989) (distinguishing

unconstitutional total ban on dial-a-porn for adults on

the ground that it was indecent for minors from

constitutional regulation of indecent broadcasts in

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)); cf.

City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.

750, 757 (1988) (prior restraint).

As the dissent noted in Ashcroft, regulations that

impose costs, or that create some risk of user

embarrassment are not per se unconstitutional and,

when they are for children’s protection, have been

upheld by the Court. 542 U.S. at 682–83. H.B. 1181

prohibits websites from retaining identifying

information for its verified adult users, minimizing

the risk that the information would be leaked and

result in user embarrassment. This further minimizes

any chilling effect on adult access. In any case, the

First Amendment does not grant a right to remote

sexual stimulation with zero risk of embarrassment.

Cf. Ashcroft, 542 U.S. at 683 (stressing the

confidentiality provisions of the law at issue and citing

United States v. American Library Assn., Inc., 539

U.S. 194, 209 (2003) (plurality opinion) (“[T]he

Constitution does not guarantee the right to acquire

information at a public library without any risk of

embarrassment”)).

Additionally, different modes of communication

present different First Amendment considerations. At

one end of the spectrum, where First Amendment

protections are most stringent, is the individual adult

possessing material in the privacy of his home.

17

Stanley v. Georgia, 394 U.S. 557, 565 (1969). At the

other end of the spectrum, where greater regulation is

permitted, are broadcast media, like radio or

television, in which both the audience composition

and the content are diverse and fluctuating. Pacifica,

438 U.S. 726.

Another factor is whether the law being facially

challenged attempts to suppress ideas and

viewpoints, such as are involved with political speech.

Such restrictions are subject to the highest possible

scrutiny and are “presumptively unconstitutional.”

Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819, 829–830 (1995). Conversely, evenhanded,

viewpoint-neutral laws are subjected to a “less

exacting overbreadth scrutiny.” Broadrick, 413 U.S. at

616. Content-based speech regulations may present

no First Amendment problem “so long as the nature of

the content discrimination is such that there is no

realistic possibility that official suppression of ideas is

afoot.” R.A.V. v. City of St. Paul, 505 U.S. 377, 390

(1992).

Speech that expresses no ideas or viewpoints, such

as run-of-the-mill pornography, is accorded less First

Amendment protection. See, 315 U.S. at 571–72

(explaining that the “lewd and obscene” were not

accorded First Amendment protection because they

were “no essential part of any exposition of ideas, and

are of such slight social value as a step to truth that

any benefit that may be derived from them is clearly

outweighed by the social interest in order and

morality.”) Society’s interest in protecting such

graphic sexual expression is “of a wholly different, and

lesser, magnitude than the interest in untrammeled

18

political debate . . . .” Young v. Am. Mini Theatres,

Inc., 427 U.S. 50, 70–71 (1976) (plurality opinion).

Yet another consideration is whether the law at

issue addresses pure speech, where First Amendment

protections are strongest, or expressive conduct,

where greater restrictions are permitted. Broadrick,

413 U.S. at 616.

In sum, speech regulations are scrutinized more

leniently, and First Amendment protections are at

their weakest when children are at risk; where no

criminal prosecution or total ban or prior restraint or

viewpoint discrimination is present; where the law

regulates conduct; and where the content is sexually

graphic and is broadly disseminated in a manner that

may expose children.

H. B. 1181 is just such a law. Its sole purpose is to

restrict children’s access to sexually graphic material.

Pet.App.170a. It uses solely civil enforcement and

contains no criminal penalties. Id. at 173a–175a. It is

a mere regulation, not a ban or prior restraint. Id. at

169a–175a. It involves no restraint upon the

expression of ideas or viewpoint discrimination. Id.

The activity it restricts, the commercialized remote

sexual stimulation of children, is more conduct than

speech. H.B. 1181 does not target individualized

communication

between

adults,

but

widely

8

disseminated, intrusive, sexually graphic content

accessible by children.

8

See, supra, section I.

19

The internet of today, particularly in the age of

social media where children are barraged by

unsolicited, algorithm-driven material that populates

their “feeds,” is more like the broadcast media the

Court permitted regulation of in Pacifica, than like the

internet of the late 1990’s and early 2000’s, except

that the risk to children is now orders of magnitude

greater.

For these reasons, H.B. 1181’s applications to nonobscene material present little danger of infringement

of core First Amendment interests.

All these factors show there is little, if any,

protected speech unconstitutionally restricted under

H.B. 1181. Balanced against that is the vast amount

of plain obscenity Petitioner’s websites contain.

Consequently, H.B. 1181, does not violate the First

Amendment because it is not overbroad when “judged

in relation to the statute's plainly legitimate sweep.”

413 U.S. at 615; 144 S. Ct. at 2397.

The Court should

challenge to H.B. 1181.

reject

Petitioner’s’

facial

D. Reno and Ashcroft are not controlling.

The Courts’ decisions in Reno v. Am. C.L. Union,

521 U.S. 844 (1997) and Ashcroft are not controlling

here.

Reno involved several dispositive facts that are

absent here. The federal law at issue in Reno was

enforced through criminal penalties, including

imprisonment for up to two years for each violation.

20

521 U.S. at 860. The Court found the statute vague,

because its provisions paralleled only one of the three

Miller factors. Id. at 873–874. The Court found that

the threat of criminal prosecution under that vague

law could chill protected adult speech, id., and that

this chilling effect posed greater First Amendment

concerns than those posed by civil regulations. Id. at

871–872. Conversely, H.B. 1181’s definition of “sexual

material harmful to minors” parallels all three of the

Miller factors, adding “with respect to minors” to each

element, Pet.App.170a, and it is enforced only through

civil monetary fines. Id. at 173a–175a.

The Reno Court found that the late 1990’s

technology did not enable senders to prevent children

from receiving communications without also

preventing receipt for adults. Id. at 876. As the court

below found, age-verification technology has

developed dramatically since the 1990s. Pet.App.15a.

Finally, the law at issue in Reno applied to non-sexual

content, 521 U.S. at 873, whereas H.B. 1181 applies

only to sexual material harmful to minors.

Pet.App.170a. The Reno Court emphasized that the

law at issue there applied to non-commercial speech,

521 U.S. at 877, while H.B. 1181 applies only to

commercial websites. Pet.App.169a, 171a. The law at

issue in Reno applied a nationwide “community

standard,” 521 U.S. at 877–878, whereas H.B. 1181

could involve only community standards within

Texas. Pet.App.170a. Reno is clearly distinguishable.

Ashcroft is distinguishable for several critical

reasons. The most important distinguishing factor is

that the law at issue was enforced with criminal

penalties, including up to six-months’ imprisonment,

21

leading to the remark that the criminal nature of the

law at issue there made it a “repressive force.” 542

U.S. at 660–661. And, it provided merely an

affirmative defense for websites that used adult

verification, 542 U.S. at 662, whereas H.B. 1181

requires age verification up front. Pet.App.171a.

Finally, as Respondent ably demonstrated in its

Brief in Opposition to the Petition for Writ of

Certiorari, the technology has advanced greatly since

the era of Reno and Ashcroft such that age verification

software enables websites to reasonably distinguish

adult users from children. Resp.18–21.

The holdings in both Reno and Ashcroft rest on

facts different than those present here, the most

significant being that this case involves no criminal

enforcement. Those cases are not controlling here.

E. H.B. 1181 is the least restrictive, effective

legislative remedy.

The five-justice majority in Ashcroft found that the

criminal law at issue in that case did not satisfy First

Amendment requirements largely because it

considered parent-initiated filtering software to be a

less restrictive alternative. 542 U.S. at 668–670.

However, as the dissent noted, the proper

constitutional question is whether there is a less

restrictive and effective legislative alternative to the

status quo. Id. at 684. Parental filtering software is

simply part of the status quo posture of doing nothing,

which is always less restrictive than when lawmakers

take action. Id.

22

The dissent correctly noted that filtering software

costs money, which some parents cannot afford; that

it placed unreasonable reliance on parental vigilance

against a backdrop of many parents who worked and

left children unsupervised for long periods; and

finally, that filtering software blocked much harmless

and valuable material. Id. at 684–687.

Justice Scalia would have upheld the law at issue

in Ashcroft because it involved behavior amounting to

criminal solicitation to attract children to indecent

material, which is behavior, not speech. Id. at 676.

All the factors noted by the four justices that would

have upheld the law at issue in Ashcroft are present

with greater force here. H.B. 1181 provides the least

restrictive, effective legislative alternative to doing

nothing. And, it targets an activity that is more

conduct than speech—selling remote sexual

stimulation to children.

In the twenty years since Ashcroft, the availability

of parental filtering software has done nothing to stem

the tide of online hardcore pornography available to

children; rather, the problem has become markedly

worse. This demonstrates that parent-initiated

filtering software can no longer be considered an

effective alternative to age-verification requirements.

H.B. 1181 is the least restrictive, effective legislative

remedy.

CONCLUSION

Since the Court’s 5-4 decision in Ashcroft, an entire

generation of children have been exposed to an

23

explosion of online pornography. The First

Amendment was intended to ensure the free

expression of ideas, not the largely obscene, ideavacant sexual imagery populating Petitioner’s

websites. This pervasive sexual imagery threatens

children far more than the broadcast media this Court

has long permitted lawmakers to regulate.

Petitioner’s websites contribute nothing to the contest

of ideas. Indeed, Petitioner’s members peddle remote

sexual stimulation, which is more conduct than

speech. Requiring users to verify their adult age

before accessing this content threatens no core First

Amendment interests. H.B. 1181 protects children

from being violated by commercial smut peddlers who

would profit by destroying their innocence.

Numerous factors distinguish H.B. 1181 from the

laws at issue in Reno and the 5-4 decision in Ashcroft

II: most notably that H. B. 1181 involves no criminal

penalties or jail time and is specific in its description

of content requiring verification. These distinguishing

factors come before the Court in the context of a

twenty-year record of parental filtering software’s

practical inefficacy since Ashcroft.

Petitioner brought this action before giving Texas

officials an opportunity to show they can implement

H. B. 1181’s civil penalties without sacrificing core

First Amendment interests. Those interests are

treasured in our free society—but so are our children.

Texas deserves a chance to show that it can protect

both. These factors, coupled with the Court’s deep

skepticism of premature facial challenges, especially

in the internet context, tip the balance firmly in favor

of H. B. 1181’s facial constitutionality.

24

Accordingly, the Court should reject Petitioner’s

facial challenge and affirm the decision of the court

below.

November 15, 2024.

Respectfully submitted,

TREY DELLINGER

Counsel of Record

American Family Association, Inc.

AFA Action, Inc.

108 Parkgate Drive

Tupelo, MS 38801

662-821-2024 ext. 523

trdellinger@afa.net

Counsel for Amici Curiae

ia

APPENDIX

TABLE OF CONTENTS

List of amici lawmakers from 15 other states that

have passed laws requiring users of adult

websites to verify age ..................................... App-1

App-1

Alabama Legislature

Representative Ben Robbins, primary sponsor of HB

164

Representative Susan DuBose, sponsor

Representative David Faulkner, sponsor

Representative Russell Bedsole, supported and voted

in favor

Representative Ron Bolton, supported and voted in

favor

Representative Jim Carns, supported and voted in

favor

Representative Danny Crawford, supported and

voted in favor

Representative Ben Harrison, supported and voted in

favor

Representative Leigh Hulsey, supported and voted in

favor

Arkansas General Assembly

Senator Joshua Bryant, cosponsor of SB 66

Representative Robin Lundstrum, cosponsor

App-2

Florida Legislature

Representative Chase Tramont, primary sponsor of

HB 3

Representative Lauren Melo, cosponsor

Idaho Legislature

Representative Vito Barbieri, cosponsor of H 498

Representative Judy Boyle, cosponsor

Representative Jaron Crane, cosponsor

Representative Jacyn Gallagher, cosponsor

Representative Dale Hawkins, cosponsor

Representative Ted Hill, cosponsor

Representative Wendy Horman, cosponsor

Representative Jordan Redman, cosponsor

Representative Tony Wisniewski, cosponsor

Representative Barbara Ehardt, supported and voted

in favor

Senator Kelly Anthon, cosponsor

Senator Scott Grow, cosponsor

Senator Brian Lenney, cosponsor

Senator Tammy Nichols, cosponsor

App-3

Senator Glenneda Zuiderveld, cosponsor

Indiana General Assembly

Assistant Majority Floor Leader Senator Liz Brown,

primary author of SB 17

Assistant Majority Floor Leader Representative

Joanna King, House sponsor

Kansas Legislature

Senator Mark B. Steffen, M.D., sponsor (as member

of committee) of SB 394

Senator Mike Thompson, supported and voted in

favor

Kentucky General Assembly

Representative Candy Massaroni, cosponsor of HB

278

Representative Steve Rawlings, cosponsor

Louisiana State Legislature

Representative Beryl A. Amedée, coauthor of HB 142

Representative Kathy Edmonston, coauthor

App-4

Majority Leader Representative Mark Wright,

coauthor

Senator Beth Mizell, coauthor

Mississippi Legislature

Senator Nicole A. Boyd, primary sponsor of SB 2346

Senator Angela Hill, cosponsor

Senator David Parker, cosponsor

Senator Bart Williams, cosponsor

Representative Lee Yancey, primary sponsor of

House companion HB 1315

Representative Dan Eubanks, cosponsor

(Former) Representative Nick Bain, House conferee

(Former) Speaker Philip Gunn, supported and voted

in favor

Montana Legislature

Senator Willis Curdy, primary sponsor of SB 544

Nebraska Legislature

Senator Dave Murman, primary sponsor of LB 1092

Senator Ray Aguilar, cosponsor

App-5

Senator Joni Albrecht, cosponsor

Senator Kathleen Kauth, supported and voted in

favor

North Carolina General Assembly

Representative Mike Clampitt, cosponsor of HB 8

Representative George Cleveland, supported and

voted in favor

Representative Neal Jackson, sponsor of House

original House vehicle HB 534

South Carolina Legislature

Representative Travis Moore, primary sponsor of H.

3424

Representative John R. McCravy III, cosponsor

Senator Tom Davis, Senate committee manager

Tennessee Legislature

Senator Paul Rose, co-prime sponsor of SB 1792

Deputy Speaker Senator Janice Bowling, supported

and voted in favor

Representative Jody Barrett, co-prime sponsor

App-6

Utah Legislature

Senator Todd D. Weiler, primary sponsor of SB 287

House Majority Whip Representative Karianne

Lisonbee, supported and voted in favor

Representative Kay Christofferson, supported and

voted in favor

Representative Ken Ivory, supported and voted in

favor

Representative Tim Jiminez, supported and voted in

favor

Representative Keven Stratton, supported and voted

in favor