2024 Term of Court:
The Texas legislature enacted a statute requiring Internet web sites that published pornographic, but otherwise legal visualizations of sex, to condition viewer access upon proof, capable of Internet verification, that the viewer is at least 18 years of age. The explicitly stated purpose of that statute was to prevent minors from accessing depictions of sex on pornographic web sites. See Tex. Civ. Prac. & Rem. Code Ann. §§129B.001 et seq. (referred to hereafter as “Texas H.B. 1181”).In Free Speech Coalition v. Paxton, US Sup.Ct.Slip Opinion of June 27, 2025, the Court held that this statute did not violate the Free Speech Clause of the First Amendment to the United States Constitution, even though it hampered adult access to pornographic web sites. Although none of the Court’s Justices really believed that the statute actually violated the Free Speech Clause, the vote on the Court was only 6-3, with Justices Kagan, Sotomayor, and Jackson dissenting. The dissenting Justices objected to the majority’s refusal to subject the statute to “strict scrutiny,” the Court’s most aggressive approach to holding statutes unconstitutional. The majority claimed that the statute was subject only to “intermediate scrutiny,” which all agreed the statute could easily pass.
Comment: The Court’s long recognized standards for gauging the Constitutionality of legislation touching on rights protected by the Bill of Rights, known as “strict scrutiny” and “intermediate scrutiny,” basically begin with a presumption, by the Court, that the challenged statute is unconstitutional and then proceed to inquire whether or not there is a reasonable rebuttal to that presumption. The adverse presumption against the Constitutionality of a statute traces its origin to 1938, when the Court appended a footnote, now well known among Constitutional lawyers as “Footnote No. 4,” or “Note 4,” to United States v. Carolene Products Co., 304 U.S. 144 (1938). Before that, with the notorious exceptions of The Dred Scott Case, 60 U.S. 393 (1856) and Lochner v. New York, 198 U.S. 45 (1905), the Court claimed authority to overrule legislation only upon an affirmative showing that the statute was “repugnant” to the Constitution. See Marbury v. Madison, 5 U.S. 137, 180 (1803).In the case at bar, none of the Justices on the Court adhered to the Court’s original standard of review for “repugnancy.”
Requiring the defender of a challenged statute to show a reasonable rebuttal to a presumption of Constitutional invalidity necessarily involves the unelected Court in an up-or-down evaluation of the statute’s policy. Lawmakers, and the people, not unelected judges, set public policy. From the proper, apolitical perspective an unelected court must give to a challenged statute, the statute is either “repugnant” to the Constitution, or it is not. Despite recent decades of Court precedent to the contrary, I believe the only appropriate standard for the judicial review of the Constitutionality of legislation is the Court’s original standard for that duty, the standard of “repugnancy.” Therefore, I agree withthe Court that H.B. 1181 does not violate the Free Speech Clause of the First Amendment. But I believe that only because that statute is not “repugnant” to the United States Constitution.
Dan D. Rhea
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