The Supreme Court of the United States heard oral arguments on Wednesday in Free Speech Coalition v. Paxton, a case concerning a Texas law restricting access to websites with “sexual material harmful to minors.”

Derek Shaffer, counsel for the law’s challengers, argued that the application of rational basis defies the precedent set in Ashcroft v. ACLU, where the court applied strict scrutiny to a federal law preventing minors from accessing online pornography. Biden’s deputy solicitor general, Brian Fletcher, also argued that rational basis was the improper standard of review, but stated “that should not prevent Congress or the states from restricting the distribution of pornography to children online, just as states have traditionally done it in brick-and-mortar stores and theaters.”

Texas Solicitor General Aaron Nielson defended the law. He stressed that because the challengers did not dispute these websites harm children, the court should apply the rational basis review as they did in Ginsberg v. New York. In that case, the court applied rational basis review to a law illegalizing the sale of pornography to minors in physical stores. Nielson argued that even strict scrutiny is met here, but that applying that heightened standard would force Texas to satisfy the same scrutiny standard “to keep kids out of strip clubs.”

The court’s conservative majority appeared skeptical of the law’s challenge. Alito and Barrett shared concerns about content filtering’s effectiveness — an alternative to age verification offered by Shaffer. Most justices seemed to gravitate toward Fletcher’s argument to apply strict scrutiny but send the case back to the lower court for review.

The law, Texas H.B. 1181, passed in September 2023, requires companies with websites whose content is more than one-third sexual material to implement age verification methods limiting access to adults, among other measures.

Before the law took effect, the plaintiffs sued on First Amendment grounds. A federal district court ruled in the plaintiff’s favor, finding the age verification requirement failed strict scrutiny. On appeal, the Fifth Circuit Court of Appeals overturned, as they concluded the rational basis review was the proper standard for the age verification requirement. Thus, the question before the Supreme Court is whether the law’s age verification requirement is subject to rational basis or strict scrutiny.

The Supreme Court agreed to hear the case challenging the law in July 2024.