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

Supreme Court briefNov 21, 2024

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NO. 23-1122

IN THE

Supreme Court of the United States

FREE SPEECH COALITION, ET AL.,

Petitioners,

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 ALLIANCE DEFENDING FREEDOM

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT

JAMES A. CAMPBELL

JOHN J. BURSCH

Counsel of Record

CODY S. BARNETT

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 3

Texas’s law is consistent with historical practices

and does not offend the First Amendment................ 3

Means-end scrutiny cannot upend how

this Court has historically treated the

First Amendment. ......................................... 3

II. Texas’s law facially applies to obscene

materials that historically fall outside the

First Amendment’s scope. ............................. 6

III. Texas’s law regulates obscene materials

consistent with historical purposes and

practices. ...................................................... 11

CONCLUSION ......................................................... 18

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

6 F.4th 1160 (10th Cir. 2021) .............................. 4

303 Creative LLC v. Elenis,

600 U.S. 570 (2023).......................................... 1, 4

Ashcroft v. ACLU,

535 U.S. 564 (2002)............................................ 16

Ashcroft v. ACLU,

542 U.S. 656 (2004)............................................ 16

City of Boerne v. Flores,

521 U.S. 507 (1997).............................................. 2

City of Erie v. Pap’s A.M.,

529 U.S. 277 (2000)............................................ 17

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002)............................................ 17

Commonwealth v. Holmes,

17 Mass. 336 (1821) ............................................. 8

Commonwealth v. Sharpless,

2 Serg. & Rawle 91 (Pa. 1815)....................... 8, 11

District of Columbia v. Heller,

554 U.S. 570 (2008).............................................. 3

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022).............................................. 3

iii

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990)...................................... 10, 17

Ginsberg v. New York,

390 U.S. 629 (1968)........................................ 2, 16

Iancu v. Brunetti,

588 U.S. 388 (2019)............................................ 17

Illinois ex rel. Madigan v. Telemarketing

Associates,

538 U.S. 600 (2003).............................................. 4

Marsh v. Chambers,

463 U.S. 783 (1983).............................................. 2

Miller v. California,

413 U.S. 15 (1973)...............................7, 10, 14, 15

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024).................................. 10, 16

National Republican Senatorial Committee v.

FEC,

117 F.4th 389 (6th Cir. 2024) ...................... 3, 5, 6

New York State Rifle & Pistol Association, Inc. v.

Bruen,

597 U.S. 1 (2022)...................................... 3, 4, 5, 6

New York v. Ferber,

458 U.S. 747 (1982)...................................... 13, 15

People v. Ruggles,

8 Johns. 290 (N.Y. Sup. Ct. 1811) ....................... 8

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

505 U.S. 377 (1992)............................................ 14

Regina v. Hickland

[1868] 3 QB 360 (Eng.) ...................................... 11

Reno v. ACLU,

521 U.S. 844 (1997)...................................... 15, 16

Riley v. California,

573 U.S. 373 (2014).............................................. 3

Roth v. United States,

354 U.S. 476 (1957)........................................ 7, 14

Smith v. California,

361 U.S. 147 (1959).................................... 7, 8, 17

Thompson v. Oklahoma,

487 U.S. 815 (1988)............................................ 16

United States v. Bennett,

24 F. Cas. 1093 (S.D.N.Y. 1879) ........................ 11

United States v. Jimenez-Shilon,

34 F.4th 1042 (11th Cir. 2022) .................... 2, 4, 5

United States v. Playboy Entertainment Group,

Inc.,

529 U.S. 803 (2000)................................ 10, 14, 15

United States v. Rahimi,

144 S. Ct. 1889 (2024).........................3, 4, 5, 6, 11

United States v. Stevens,

559 U.S. 460 (2010).......................................... 4, 5

Statutes

Mass. Rev. Stat. ch. 130, 10 (1836) ......................... 11

Tex. Civ. Prac. & Rem. § 129B.001 ....................... 6, 7

Tex. Civ. Prac. & Rem. § 129B.002 ........................... 6

Other Authorities

An Act to Promote Literature, Act of April 29,

1786, c. LIV, § IV, 1 LAWS OF NEW YORK

(Jones and Varick) (1777–89) .............................. 8

Cong. Globe App., 42d Cong., 3d Sess. (Mar. 1,

1873) (Obscene Literature – Mr. Merriam) ....... 14

David Horsey, Our Social Experiment: Kids with

Access to Hard-Core Porn, L.A. Times (Sept. 3,

2013) ................................................................... 12

Donna I. Dennis, Obscenity Law and Its

Consequences in Mid-Nineteenth Century

America, 16 Colum. J. of Gender & L. 43

(2007).............................................................. 9, 15

Francis Ludlow Holt, THE LAW OF LIBEL (1816) ...... 7

Gabriela Coca & Jocelyn Wikle, What Happens

When Children Are Exposed to Pornography?,

Inst. for Fam. Studies (Apr. 2024) .................... 13

Genevieve Lakier, The Invention of Low-Value

Speech, 128 Harv. L. Rev. 2166 (2015) ......... 8, 14

Geoffrey R. Stone, Sex and the First Amendment:

The Long and Winding History of Obscenity

Law, 17 First Amend. L. Rev. 134 (2018) ... 12, 13

Paul J. Wright, Bryant Paul & Debby Herbenick,

Preliminary Insights from a U.S. Probability

Sample on Adolescents’ Pornography

Exposure, Media Psychology, and Sexual

Aggression, 26 J. of Health Commc’n (2021) .... 12

Simone Kühn & Jürgen Gallinat, Brain Structure

and Functional connectivity associated with

pornography consumption: the brain on porn,

JAMA Psychiatry, (July 2014) .......................... 12

THE PENAL CODE OF THE STATE OF TEXAS, Title

XII, Ch. 4, Art. 399 (1857) ................................. 16

Thomas Cooley, A TREATISE ON THE

CONSTITUTIONAL LIMITATIONS WHICH REST

UPON THE LEGISLATIVE POWER OF THE STATE

OF THE AMERICAN UNION (1871) .......................... 9

Thomas Starkie, II A TREATISE ON THE LAW OF

SLANDER AND LIBEL (1813) .................................. 7

Constitutional Provisions

U.S. Const. amend. I .................................................. 3

W.V. Const. art. 2, § 4 ................................................ 9

INTEREST OF AMICUS CURIAE 1

Alliance Defending Freedom is a public-interest

law firm dedicated to defending religious freedom,

free speech, the sanctity of life, parental rights, and

marriage and family. Because our nation’s laws

should protect children—including from obscenity

and hardcore pornography—ADF supports reasonable measures that prevent children from accessing

such material on the internet.

ADF is deeply troubled about the pornography

epidemic across the nation. With the advent of easy

internet access, smart phones, and social media, more

children are viewing pornographic materials at young

ages. Numerous studies show the deleterious effects

that pornography has on the brain, particularly the

impressionable minds of children. “These include

increased rates of depression, anxiety, acting out and

violent behavior, younger age of sexual debut, sexual

promiscuity, increased risk of teen pregnancy, child

sex abuse, sexual trafficking, and a distorted view of

relationships between men and women.” The Impact

of Pornography on Children, Am. Coll. of Pediatricians (Aug. 2024).

ADF is also committed to robust free-speech protections. E.g., 303 Creative LLC v. Elenis, 600 U.S.

570 (2023) (vindicating free-speech rights). Laws like

Texas’s strike an appropriate balance by regulating

material that historically falls outside the First

Amendment’s scope.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

SUMMARY OF THE ARGUMENT

Petitioners frame this case as one about “rationalbasis review” versus “strict scrutiny.” Pet.Br.i. That

misses the broader picture. Rather than immediately

jump to means-end analysis—which is “judgeempowering” and “freedom-diluting,” United States v.

Jimenez-Shilon, 34 F.4th 1042, 1054 (11th Cir. 2022)

(Newsom, J., concurring)—constitutional analysis

should always “begin with its text.” City of Boerne v.

Flores, 521 U.S. 507, 519 (1997). And constitutional

text must be interpreted consistent with practices

“deeply embedded in the history and tradition of this

country.” Marsh v. Chambers, 463 U.S. 783, 786

(1983).

History presents a roadblock for Petitioners.

Texas’s law applies to hardcore pornographic

materials that easily fit this Court’s definition of

obscenity, which this Court has long recognized “is

not protected expression.” Ginsberg v. New York, 390

U.S. 629, 641 (1968). From the Founding through the

Civil War and beyond, government actors have been

free to regulate access to obscenity without offending

the First Amendment.

Indeed, Texas’s law regulates these sexually

explicit materials in a way that is analogous to

historic regulations. The law does not censor any

speech or prophylactically prevent publication of

anything. Rather, Texas has shielded only children

from access to these harmful materials, and it has

done so to protect them. This purpose is historically

rooted. And the means Texas has chosen to protect

children tracks how this country has traditionally

regulated pornographic materials.

This Court should affirm.

ARGUMENT

Texas’s law is consistent with historical

practices and does not offend the First

Amendment.

Constitutional analysis starts with “the language

of the instrument.” Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 235 (2022) (cleaned up). That

language “offers a fixed standard for ascertaining

what our founding document means.” Ibid. (cleaned

up).

Means-end scrutiny cannot upend how this

Court has historically treated the First

Amendment.

The First Amendment forbids the government

from “abridging the freedom of speech.” U.S. Const.

amend. I. It “codified a pre-existing right,” the bounds

of which are defined by “the scope [it was] understood

to have when the people adopted [it].” Nat’l Republican Senatorial Comm. v. FEC, 117 F.4th 389, 398 (6th

Cir. 2024) (en banc) (Thapar, J., concurring) (quoting

District of Columbia v. Heller, 554 U.S. 570, 592, 634–

35 (2008)). So, “to inform the meaning of [this]

constitutional text,” this Court looks to history for

guidance. N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1, 25 (2022).

Regrettably, lower courts often approach the First

Amendment’s scope “mechanical[ly],” cf. Riley v.

California, 573 U.S. 373, 386 (2014), applying “a

balancing approach variously known as means-end

scrutiny,” United States v. Rahimi, 144 S. Ct. 1889,

1920 (2024) (Kavanaugh, J., concurring). This type of

review appears nowhere in the Constitution.

Under this means-end approach, “judges … weigh

the benefits against the burdens of a law and …

uphold the law as constitutional if, in the judge’s view,

the law is sufficiently reasonable or important.” Ibid.

(emphasis added). That is “policy by another name.”

Ibid. And it empowers judges to ignore constitutional

text and go against centuries of history. E.g., 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021) (excusing government-compelled speech using meansends analysis), overruled by, 600 U.S. 570 (2023).

Instead, courts must first ask “whether the expressive conduct falls outside of the category of protected speech.” Bruen, 597 U.S. at 24 (citing Ill. ex rel.

Madigan v. Telemarketing Assocs., 538 U.S. 600, 620

n.9 (2003)). That inquiry turns on “historical evidence

about the reach of the First Amendment’s protections.” Id. at 24–25 (citing United States v. Stevens,

559 U.S. 460, 468–71 (2010)). While “historical analysis can be difficult,” id. at 25 (cleaned up), “reliance on

history to inform the meaning of constitutional text—

especially text meant to codify a pre-existing right—is

… more legitimate, and more administrable, than”

allowing judges to engage in ad hoc balancing tests,

an approach that mirrors policymaking, ibid.

Lower courts have lost sight of the historical

approach. “Free speech cases ... are so choked with

different variations of means-ends tests that [courts]

sometimes forget what the constitutional text even

says.” Jimenez-Shilon, 34 F.4th at 1053 (Newsom, J.,

concurring). This means-end scrutiny appears only in

discrete “pockets of free-speech jurisprudence.”

Rahimi, 144 S. Ct. at 1921 & n.7 (Kavanaugh, J.,

concurring). Yet even in those pockets, “the Court still

often relies directly on history.” Ibid.

That’s because history “elucidates how contemporaries” at the Founding “understood the text.”

Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring). It

also gives insight into “categories of private conduct

that were typically subject to regulation by government when the relevant constitutional text was

ratified.” Nat’l Republican Senatorial Comm., 117

F.4th at 408 (Bush, J., concurring dubitante). “If

government never or seldom regulated a type of

conduct during the pre-ratification era, then that may

suggest that such conduct is constitutionally protected. But if government did typically regulate the

conduct pre-ratification, then that may support an

inference that the constitutional text does not bar

government intervention.” Id. at 408–09.

This Court should clarify that, when determining

the First Amendment’s scope, courts must “engage in

the two-step inquiry that [the] Second Amendment

jurisprudence uses.” Nat’l Republican Senatorial

Comm., 117 F.4th at 399 (Thapar, J., concurring).

After all, as the Court noted in Bruen, the two-step

inquiry mirrors “how [the Court] protect[s] other

constitutional rights” like “freedom of speech in the

First Amendment.” Bruen, 597 U.S. at 24.

Under this approach, courts first ask whether the

“Amendment’s text covers an individual’s conduct.”

Nat’l Republican Senatorial Comm., 117 F.4th at 399

(Thapar, J., concurring). That includes determining

whether the alleged speech “fall[s] into one of the

‘historic and traditional categories’ of expression—

like obscenity or defamation—that are outside ‘the

freedom of speech’ as the founding generation

understood it.” Ibid. (quoting Stevens, 559 U.S. at

468–69). Accord, e.g., Jimenez-Shilon, 34 F.4th at

1053 (Newsom, J., concurring) (noting that under

both current precedent and historical practice, “the

government can ban certain forms of speech

outright—defamation, incitement, obscenity, etc.—

because they are understood to fall outside the

freedom of speech” (cleaned up)).

Only if a plaintiff proffers some protected-speech

element does a court reach the second part of the

inquiry, which requires the government to “justify its

regulation by demonstrating that it is consistent with

the Nation’s historical tradition.” Nat’l Republican

Senatorial Comm., 117 F.4th at 399 (Thapar, J.,

concurring) (cleaned up). The government must do so

with an eye toward “[w]hy and how the regulation

burdens” the free-speech right. Rahimi, 144 S. Ct. at

1898. Accord Bruen, 597 U.S. at 29. “[T]hat [methodology] maps nicely onto the two things that courts

evaluate under the tiers of scrutiny: the purpose a

regulation serves, and the way in which it advances

that purpose.” Nat’l Republican Senatorial Comm.,

117 F.4th at 401 (Thapar, J., concurring).

II. Texas’s law facially applies to obscene

materials that historically fall outside the

First Amendment’s scope.

Under this approach, Petitioners fail at the

starting gate. Texas’s law applies only to platforms

that publish or distribute content “more than onethird of which is sexual material harmful to minors.”

Tex. Civ. Prac. & Rem. § 129B.002(a). The law defines

such harmful material as that which is “designed to

appeal to or pander to the prurient interest.” Id.

§ 129B.001(6)(A). And it gives specific examples,

including material that depicts “sexual intercourse,

masturbation, sodomy, bestiality, oral copulation,

flagellation, excretory functions, exhibitions, or any

other sexual act.” Id. § 129B.001(6)(B)(iii).

That statutory definition is fully consistent with

how this Court has defined “obscene material …

unprotected by the First Amendment.” Miller v.

California, 413 U.S. 15, 23 (1973). Indeed, Texas’s

definition has a long historical pedigree. English

common law first recognized “obscene libel” as a crime

in 1727, defining it as a “species of representation,

whether by writing, by picture, or by any manner of

sign of substitute, which is indecent and contrary to

public order and natural feeling.” Francis Ludlow

Holt, THE LAW OF LIBEL 73 (1816). By the early 19th

century, English authorities concluded that it was

“fully established, that any immodest and immoral

publication, tending to corrupt the mind, and to

destroy the love of decency, morality, and good order,

is punishable.” Thomas Starkie, II A TREATISE ON THE

LAW OF SLANDER AND LIBEL 155 (1813).

What was true in England was also true in the

early Republic. “At the time of the adoption of the

First Amendment,” obscenity “was outside the

protection intended for speech and press.” Roth v.

United States, 354 U.S. 476, 483 & n.13 (1957)

(collecting sources). Accord Smith v. California, 361

U.S. 147, 163 n.1 (1959) (Frankfurter, J., concurring)

(“The common-law liability was carried across the

Atlantic before the United States was established and

appears early in the States.”).

For example, a 1786 New York copyright law

“specifically stated that ‘nothing in this Act shall

authorise any Person or Persons to publish any Book

that may be profane, treasonable, defamatory, or

injurious to Government, Morals or Religion.’” Ibid.

(cleaned up) (quoting An Act to Promote Literature,

Act of April 29, 1786, c. LIV, § IV, 1 LAWS OF NEW

YORK (Jones and Varick) (1777–89) 321). And in 1811,

James Kent, 2 chief justice of the New York Supreme

Court, approved prosecutions against publications

“which corrupt moral sentiment,” including “obscene

actions, prints and writing.” People v. Ruggles, 8

Johns. 290, 294 (N.Y. Sup. Ct. 1811).

Two other state high courts—Pennsylvania and

Massachusetts—expressly recognized the English

common-law crime of obscene libel. Commonwealth v.

Sharpless, 2 Serg. & Rawle 91 (Pa. 1815);

Commonwealth v. Holmes, 17 Mass. 336 (1821).

Unsurprisingly, many states in the antebellum period

codified the common-law prohibition against

obscenity. Smith, 361 U.S. at 163 n.1 (Frankfurter, J.,

concurring) (collecting statutes). And they did not see

any conflict with the First Amendment in doing so.

2 Justice Kent took a high view of First Amendment liberties,

too. In an 1804 libel case, he opined that the First Amendment

embodies liberties that “are the highest, the most solemn, and

commanding,” such that it “seems impossible that” the Founders

“could have spoken with so much explicitness and energy, if they

had intended nothing more than that restricted and slavish

press, which may not publish any thing, true or false, that

reflects on the character and administration of public men.”

People v. Croswell, 3 Johns. Cas. 337, 391–92 (N.Y. Sup. Ct.

1804) (op. of Kent, J.). His opinion “ultimately persuaded the

New York legislature to amend the state constitution to

specifically allow parties charged with libel to introduce the

Hamiltonian truth-plus defense,” a departure from the

traditional common-law rule. Genevieve Lakier, The Invention

of Low-Value Speech, 128 Harv. L. Rev. 2166, 2185 (2015).

For instance, when West Virginia became a state

in 1863, its constitution prohibited “abridging freedom of speech” yet in the very same clause allowed

the legislature to “provide for the restraint and

punishment of the publishing and vending of obscene

books, papers, and pictures.” W.V. Const. art. 2, § 4.

See also Thomas Cooley, A TREATISE ON THE

CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE

LEGISLATIVE POWER OF THE STATE OF THE AMERICAN

UNION 422 (1871) (“[W]e understand liberty of speech

and of the press to imply not only liberty to publish,

but complete immunity from legal censure and

punishment for the publication, so long as it is not

harmful in its character, when tested by such

standards as the law affords. For these standards we

must look to the common-law rules which were in

force when the constitutional guarantees were

established.”).

In practice, states prosecuted libel obscenities

only against the most explicit materials. Indictments

in New York were largely against “what we might

now describe … extreme or ‘hard-core’” pornography,

Donna I. Dennis, Obscenity Law and Its Consequences

in Mid-Nineteenth Century America, 16 Colum. J. of

Gender & L. 43, 54 (2007), the very materials from

which Texas seeks to shield children. Those materials

depicted activities such as “orgies, masturbation, and

public sex.” Id. at 55. “The book that provoked the

most prosecutions … included graphic accounts of no

less than thirty-nine different sexual encounters.”

Ibid. In contrast, materials that merely depicted

sexual content with a “coy allusiveness,” while

condemned as immoral by segments of society, “failed

to provoke the ire of legal authorities.” Id. at 65–66.

Texas’s law tracks this historical practice. Its text

applies to “plain examples” of obscenity outside the

First Amendment’s scope. Miller, 413 U.S. at 25. It “is

not directed to particular works or performance, but

to their concentration.” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 263–64 (1990) (Scalia, J.,

concurring and dissenting in part). Contra Pet.Br.1

(suggesting that Texas’s law would prohibit “romance

novels or R-rated movies”).

Though the dissent below suggested Texas’s law

may cover non-obscene speech, Petitioners have not

made that showing. In “a facial challenge” like this

one, “the issue is whether the terms of this statute

address obscenity.” United States v. Playboy Ent.

Grp., Inc., 529 U.S. 803, 834 n.3 (2000) (Scalia, J.,

dissenting). It does—and in a way that “entails no

risk of suppressing even a single work of science,

literature, or art—or, for that matter, even a single

work of pornography.” FW/PBS, 493 U.S. at 264

(Scalia, J., concurring and dissenting in part).

In sum, Petitioners have not come close to

showing that “a substantial number of [the law’s]

applications are unconstitutional, judged in relation

to the statute’s plainly legitimate sweep.” Moody v.

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

up). Indeed, one would search in vain for any nonpornographic materials on XVideos, XNXX, Penthouse, and Bang Bros, some of Petitioner WebGroup

Czech Republic, A.S.’s most popular adult websites.

And no one is prohibiting those websites’ sexually

explicit content, only minors’ ability to access it.

III. Texas’s law regulates obscene materials

consistent with historical purposes and

practices.

Petitioners’ challenge also fails at the second step

of the analysis because Texas’s law regulates access

to these sexually explicit materials in a manner

“consistent with the principles that underpin our

regulatory tradition.” Rahimi, 144 S. Ct. at 1898.

1. Purpose. Start with the purpose underlying

Texas’s law: to protect children from harmful pornographic materials. That purpose is consistent with

how the country has regulated sexually explicit

materials throughout its history. And it does not

strike at the First Amendment’s core concerns.

Not long after the Founding, states enacted laws

restricting obscenity with a particular eye on

protecting minors. Pennsylvania, for instance,

allowed obscenity prosecutions because exposure to

such “lascivious” images could corrupt the morals of

young people. Sharpless, 2 Serg. & Rawle at 91–92,

94. And Massachusetts defined obscenity as material

that “manifestly tend[ed] to the corruption of the

morals of the youth.” Mass. Rev. Stat. ch. 130, 10

(1836). By 1868, the “test of obscenity” in most

jurisdictions turned on “whether the tendency of the

matter charged as obscene is to deprave and corrupt

those who minds are open to such immoral

influences.” Regina v. Hickland [1868] 3 QB 360 at

371 (Eng.). Accord, e.g., United States v. Bennett, 24

F. Cas. 1093, 1104 (S.D.N.Y. 1879) (“It is a test which

has been often applied, has passed the examination of

many courts, and I repeat it here, as the test to be

used by you.”).

Because of the internet and the ubiquity of smart

phones, “[t]here is no doubt that minors are far more

likely to encounter sexually explicit images today

than ever before in American history.” Geoffrey R.

Stone, Sex and the First Amendment: The Long and

Winding History of Obscenity Law, 17 First Amend.

L. Rev. 134, 145 (2018). “[C]hildren can easily be

exposed to the most extreme, misogynistic sex acts

imaginable.” David Horsey, Our Social Experiment:

Kids with Access to Hard-Core Porn, L.A. Times (Sept.

3, 2013). Studies show that a large amount of youth

in the United States have been exposed to hardcore

pornography—84.4% of 14- to 18-year-old males and

57% of 14- to 18-year-old females. Paul J. Wright,

Bryant Paul & Debby Herbenick, Preliminary Insights from a U.S. Probability Sample on Adolescents’

Pornography Exposure, Media Psychology, and

Sexual Aggression, 26 J. of Health Commc’n 39–46

(2021).

Such exposure has had disastrous effects on our

youth. Pornography—particularly hardcore pornography—affects the brain in the same way that

illegal drugs do. “[P]ornography consumption is

associated with decreased brain volume in the right

striatum, decreased left striatum activation, and

lower functional connectivity to the prefrontal cortex.”

Simone Kühn & Jürgen Gallinat, Brain Structure and

Functional connectivity associated with pornography

consumption: the brain on porn, JAMA Psychiatry

(July 2014). 3 These areas of the brain are responsible

for self-discipline, planning, decision-making, motivation, and moderating social behavior. The more

3 https://perma.cc/YAE3-WWVB.

pornography viewed, the more impulsive and less

capable of monitoring behavior an individual

becomes. Ibid.

What’s more, “early exposure to pornography is

connected to negative developmental outcomes, including a greater acceptance of sexual harassment, sexual activity at an early age, acceptance of

negative attitudes to women, unrealistic expectations, skewed attitudes of gender roles, greater

levels of body dissatisfaction, rape myths … and

sexual aggression.” Gabriela Coca & Jocelyn Wikle,

What Happens When Children Are Exposed to

Pornography?, Inst. for Fam. Studies (Apr. 2024)

(collecting sources). 4 Because children “have difficulty

differentiating between what is happening on screen

and what is happening in real life,” pornography

exposure also leads to “mental health problems, such

as depression and anxiety.” Ibid. “One study found

that twenty-three percent of minors who came across

such material on the Internet were ‘extremely’ or

‘very upset’ by the incident.” Stone, supra at 145.

Given this data, Texas’s purpose in enacting the

challenged statute does not threaten First

Amendment concerns. New York v. Ferber, 458 U.S.

747, 756–57 (1982) (“It is evident beyond the need for

elaboration that a State’s interest in safeguarding the

physical and psychological well-being of a minor is

compelling.” (cleaned up)). Instead, Texas’s reasons

mirror those of Congressman Clinton Merriam. In

1873, a mere five years after the Fourteenth Amendment incorporated the First Amendment against the

states, Congressman Merriam supported a bill that

4 https://perma.cc/89BY-PVQ7.

prohibited using the federal mail system to transport

obscene materials. And he did so because our nation

“will be of but short duration unless the vigor and

purity of our youth be preserved.” Cong. Globe App.,

42d Cong., 3d Sess. 168 (Mar. 1, 1873) (Obscene

Literature – Mr. Merriam). He believed that exposure

to obscene material at a young age had contributed to

the Nation’s growing crime epidemic. Ibid. No court

suggested the bill violated the First Amendment.

What was true in 1873 still is true today.

Nothing about Texas’s law suggests a purpose at

odds with the First Amendment’s core concerns—

namely, the “unfettered interchange of ideas for the

bringing about of political and social changes desired

by the people.” Roth, 354 U.S. at 484. “[T]he harsh

hand of censorship of ideas” is not “lurking” in the

shadows. Miller, 413 U.S. at 35–36.

To be sure, the First Amendment historically

prevented prior restraints against obscene material

that otherwise fell outside the First Amendment’s

protection. Genevieve Lakier, The Invention of LowValue Speech, 128 Harv. L. Rev. 2166, 2187 (2015)

(“[F]or all intents and purposes, obscenity was

constitutionally

protected

against

prior

restraint[s].”). Cf. R.A.V. v. City of St. Paul, 505 U.S.

377, 383–84 (1992). But Texas’s law does not operate

as a prior restraint on anything, obscene or otherwise.

Instead, it “protect[s] children by restricting access to,

but not banning,” obscene material. Playboy Ent.

Grp., 529 U.S. at 838 (Breyer, J., dissenting).

This Court has always recognized that “the States

have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode

of dissemination carries with it a significant danger

… of exposure to juveniles.” Miller, 413 U.S. at 18–19.

Texas’s law is grounded in this historical (and

paramount) interest. This Court should follow its

usual course and “sustain[ ] legislation aimed at

protecting the physical and emotional well-being of

youth.” Ferber, 458 U.S. at 757.

2. Practice. So Texas’s law tracks historical

reasons for regulating pornography. It also uses

historical means to do so.

Start with the regulated entities: commercial

distributors of sexually explicit materials. They are

the same objects of America’s historical obscenity

prosecutions. Dennis, supra at 71–75. As Justice

Scalia summarized years ago, “a business that

(1) offers hardcore sexual material, (2) as a constant

and intentional objective of its business, and (3) seeks

to promote it as such finds no sanctuary in the First

Amendment.” Playboy Ent. Grp., 529 U.S. at 832

(Scalia, J., dissenting) (cleaned up). Notably, Texas’s

law targets these kinds of commercial entities—and

them alone, unlike overbroad statutes that this Court

has invalidated. Reno v. ACLU, 521 U.S. 844, 877

(1997).

Like many historic laws, Texas imposes on these

commercial entities a gatekeeping function. Hardcore

pornography traditionally was delegated to “adult

zones.” Reno, 521 U.S. at 887 (O’Connor, J.,

concurring in part). Every state prohibited children

from buying “pornographic materials,” Thompson v.

Oklahoma, 487 U.S. 815, 824 (1988), and required

brick-and-mortar stores to verify a customer’s age

before selling pornography, Ginsberg, 390 U.S. at

634–35. Texas’s approach is not “novel” but deeply

embedded in this nation’s regulatory tradition. Reno,

521 U.S. at 887 (O’Connor, J., concurring in part).

And the First Amendment’s rules do “not change

because the [interaction] has gone from the physical

to the virtual world.” NetChoice, 144 S. Ct. at 2393.

Indeed, Texas’s law takes into consideration the

“distinctive characteristics” of technological evolutions. Ashcroft v. ACLU, 535 U.S. 564, 604 (2002)

(Stevens, J., dissenting). “[E]xisting technology” now

can “prevent minors from obtaining access to …

communications on the Internet without also denying

access to adults.” Id. at 568 (cleaned up). What could

not be accomplished decades ago now can. The

Constitution permits Texas to use this existing

technology to protect children.

Finally, Texas’s law is more lenient than historically permissible analogues. In the past, most

statutes punished obscenity criminally. E.g., THE

PENAL CODE OF THE STATE OF TEXAS, Title XII, Ch. 4,

Art. 399 (1857). Yet Texas’s law “is a civil statute and

so is not ‘enforced by severe criminal penalties.’”

Resp.Br.26 (quoting Ashcroft v. ACLU, 542 U.S. 656,

660 (2004)). There is no historical analogue that

would suggest Texas’s law protecting children from

pornography is in its substance or its execution a

violation of the Free Speech Clause.

***

Thirty years ago, Justice Scalia warned that

“misapplication” of First Amendment standards had

led to “the erosion of public morality by the

increasingly general appearance of … sexually

oriented businesses.” FW/PBS, 493 U.S. at 251–52

(Scalia, J., concurring and dissenting in part). The

explosion

obscene

pornography—and

its

deleterious effect on American youth and our culture

writ large—proves his point.

This Court should reorient courts to first principles. “The Constitution does not prevent those communities that wish to do so from regulating … the

business of pandering sex.” City of Los Angeles v.

Alameda Books, Inc., 535 U.S. 425, 443–44 (2002)

(Scalia, J., concurring). Indeed, “[t]he traditional

power of government to foster good morals” “ha[s] not

been repealed by the First Amendment.” City of Erie

v. Pap’s A.M., 529 U.S. 277, 310 (2000) (Scalia, J.,

concurring).

The Constitution “protects the freedom of speech;

it does not require the Government to give aid and

comfort to those using obscene … modes of

expression.” Iancu v. Brunetti, 588 U.S. 388, 401

(2019) (Roberts, C.J., concurring and dissenting in

part). Thus, “the constitutional protection of nonobscene speech cannot absorb the constitutional

power of the States to deal with obscenity. It would

certainly wrong them to attribute to Jefferson or

Madison a doctrinaire absolutism that would bar

legal restriction against obscenity as a denial of free

speech.” Smith, 361 U.S. at 162–63 (Frankfurter, J.,

concurring).

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

NOVEMBER 2024