First Amendment cases get spicy at the Supreme Court: A preview of the coming term

Oct 4, 2024 by Cindy Crawford

If 2023–24 was the tech term, this term is shaping up to be no less interesting, and a bit spicier. Goodbye to censoring Covid and gun rights, and hello to on-line sexual materials and late-night crime reporting.

While the Court has only granted two speech-related cases, there are some petitions pending that could make for an exciting term. At some point in the next few weeks, the Court will decide whether they want to hear these cases in its next term.

First up: Free Speech Coalition v. Paxton, Case No. 23-1122

Can Texas require proof of age to access sexual materials online?

The Constitution protects anonymous speech — including the right to anonymous reading or listening.

When it comes to sexually explicit material, this has traditionally meant checking IDs at the door of a club or check-out counter of the convenience store but without keeping records of who entered or picked up brown-paper wrapped magazines.

Enter the internet, with its ever-growing challenges for shielding children from age-inappropriate material.

Texas tried to solve this dilemma by enacting an age-verification and health warning that requires websites to verify that anyone attempting to access sexual material online provide identification showing that they are 18 years of age or older. The Act prohibits the entity doing the age verification from retaining any identifying information on the individual.

The dispute turns on the breadth of the material covered, which could range from R-rated movies, to sex-education videos, to pornography. These types of content have varying levels of First Amendment protection which creates a legal hurdle to the Texas law, by making it applicable to fully protected speech as well as to less-protected “obscenity.”

This law would likely “chill” speech because of both the initial requirement of providing ID as well as the risk that records will be kept on users. With hacking and doxxing a near-daily occurrence, such concerns are to be expected.

The goal of protecting children from the perilous world of the internet is likely to generate support, but as a content-based law, it will face a significant constitutional challenge.

Rather than pursuing legislation that is bound to face constitutional scrutiny, legislators can focus efforts on empowering parents with the knowledge to tailor their children’s online experience.

After all, it should be parents, not the government, in charge of what their children have access to. There is a variety of tools for parental controls that don’t involve collection of adults’ and children’s sensitive data. These tools help strike the balance between safeguarding children and avoiding the risks of government-mandated data collection.

The Court has decided to hear this case, but oral argument has not yet been scheduled.

Next up: A few pending petitions

The Court has only recently started reviewing the petitions for certiorari, in which litigants ask the Court to hear their case, but here are a couple that we hope will get granted.

Villarreal v. Alaniz, Case No. 23-1155, asks the seemingly obvious question of whether it obviously violates the First Amendment to arrest someone for asking government officials questions and publishing the information they volunteer.

The plaintiff is a citizen journalist who is known locally as La Gordiloca. Her beat is the city of Laredo, Texas, where she roams the streets, frequently at night, and reports largely on police activity.

When she sought confirmation of some information from a contact at the police department, the police invoked a public corruption law to arrest Ms. Villarreal — allegedly in retaliation for her previous unflattering reporting.

It might seem obvious that public corruption and constitutionally protected press activities are not the same. But hopefully we will get resolution of that allegedly unclear point of law if the Court agrees to hear the case.

AFPF filed an amicus brief in support of Ms. Villarreal.

Also pending is the petition in No on E v. Chiu, Case No. 23-926, the donor doxxing case. The issue there is just how far the City of San Francisco can delve into the donation records of non-profits, allowing it to demand the identification of donors to donors, and their donors, and so on.

This case is dear to our hearts, because if San Francisco’s law is allowed to stand, it would gut the donor associational rights recognized by the Court in AFPF v. Bonta.

As we stated in our amicus brief, which we filed alongside Manhattan Institute and the Foundation for Individual Rights and Expression (FIRE):

“The ways of attempting to circumvent the First Amendment are limited only by the ingenuity of politicians and lawyers, a resource not in short supply.”

Finally — a cooler topic with a potentially big payday

Lackey v. Stinnie, Case No. 23-621 asks how much of a “win” is required to get attorneys’ fees in civil rights litigation.

A seemingly dry procedural case could heat up civil rights litigation for potential plaintiffs.

Section 1988 of the Civil Rights Act provides for payment of fees to prevailing parties. But there is an open question when it comes to determining who the winner is when the government changes the challenged law while litigation is pending. If the changes match what the plaintiffs were seeking in court — is that a win?

AFPF, filing with Alliance Defending Freedom (ADF), filed an amicus brief highlighting the importance of attorneys’ fees in civil rights litigation.

Although this case doesn’t directly rely on the First Amendment, speech regulation is particularly susceptible to manipulation when the government changes the rules during litigation.

This common practice, which shows up on college campuses, has been the subject of previous amicus briefs seeking procedural changes to protect speech rights.

The Supreme Court will hear oral argument in Lackey v. Stinnie, on October 8, 2024.

Stay tuned for any status updates!

 

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