doing is nothing short of devastating. we are in court on over five cases right now to try to stop much of this behavior you see the administration seeking to continue unabated. host: thank you sky >> listening to programs on c-span on c-span radio. tell your smartspeaker play c-span and watch "washington journal," important public affairs and events and weak days listen to c-span any time. c-span, created by cable. >> c-span, democracy unfiltered. we are funded by these television companies and more. including wow!

>> the world is changed and a fast internet connection is something no one can live without. wow! is there with speed, reliability, value and choice. now more than ever it starts with great internet. >> wow! suppts c-span as a public service along with these other television providers giving you a front row seat to democracy. >> the supreme court heard oral argument for users visiting pornraphic. the free speech coalition is he arguing that the l violates free speech while the state of tech as. a district cou issued an injunction for putting a law into effect. prompting the free speech coalition to the supreme court. at iss is quh the fifth

circuit applied first amendment doctne and onle rification imposes a burden to constitutionally pteed speech. >> we will hear argument in case free speech coalition versus paxton mr. schaefer. >> thank you, mr. chief justice. in this case, the fifth circuit the more lacked form applies to a taw that burdens constitutionallyrotected speech based on content specifically by imposing an age verification barrier before yone can access a sexually oriented. and audge explained in his dissent. the strict scrutiny appl to any content basedn on web sites. texas' law is re problematic

in its failed predecessors and entire web sites depending on one-third is deemed opriate for minors and has scieif health warnings that intention to deter adustexas' assuming they cleare the age hurdle. to abandon strict scrutiny could open a wave of regulations that imperil free speech. this court could restore the preliminy injunction. the district court found tha this law's verification provisions are widely underinclusive. content filri affords one alternative s less restrictive. ashcroft teaches that a preliminary injunction should stand.

that result your honor does not denigrate in protecting children nor does it prevent chs to carry its burden between now final judgment. rather,nstating the policemen injunction would remain fidelity for first amendment and rights and prec. i welcome the court's questions. >> can age verification sys ever be found constnal? >> government should start with -- >> can ageication ever beenitutional? >> i don't think the court needs to close the door but it needs it to be of the sort that texas is ad vow indicating which is differt. >> what would that look like? what you have there are ways of verifying age sho identifying the individual of the transactional data.

and so you would have less identicaon of the individual and privacy protections that are assured by the law. uld have private rights and enforce everything depends on the attorney general who is valiy hostile to their web sites and users. d you should have confidentiality that is legally assured and the state should be providing assurance that it will not misuse the information that being collected. none of those fs are present in texas' presentation to age verification and not in the legislative record and nothing in the cigses of thi court that shows how the specific provisions of this have been tailored with sensitivity to the privacy concerns or being eve casho a making sure you have meaningful protections that protect minors across the board. if we start with -- council --

counsel, explain to me why the barrier is on-line than a brick a lot of your concerns. that is a feature of the internet. you dave privacy if you go into a book or a movie theater. you have to show age verification. explain to me why this is uniquely burdensome when it hasn't been in the reeled world coext. >> the answer is you are creating a pnt record on the internet when you provide this information. it a target f hackers and something different than physical space and you have >> well, in ashcroft 2, the- court expressed a about

the fact that technology moves so fast t the five years between that case and the case inupreme court that technology may have moved bey the record, it's been 20 years nce ashcroft, the iphone was introduced in 27. kids can get online porn from gaming systems, tablets, phones, comput content filtering for all those erent devices is difficult and i think the explosion of addiction to onlineorthat content filter igg isn't working. >> content filtering is technologically better than ever and employed by this court and employ i workplaces throughout ameri a it can work specifically in this context of parents protecting

their kids through the devices. u can -- >> this court has an i.t. department >> this is designed to be implemented in the home. if y lk at 276 mr. allen filtering. f content it's a question of adoption as to that it is telling that texas has not considered the possibility of encouraging parents. there was a proposal to this law that devices would ininstall content filtering. texas doped th without any explanation whatsoever and find that in 25556. texas decided to empower parents and without explanation decided th wld skip ahead. >> do you know a lot of parents

who are more tech savvy than their 15-year-old children? >> that's a fair question. kids may behead of parents. it's -- >> it's a problem with filtering, isn't it? i don't think so. this is to withstand and ticated people. >> come on, be there is a huge volume of evidence that filtering doesn't work. we have had many years of experienh it and we have many states who have adopted age verification requirements. you think -- why are they doing th if the filtering is so good? >> they made no ef t encourage content filtering. it. >> those are not before us. as unconstitutional bect

was motivated improper bias the part of the texas legislator that voted almost unanimously for this law. quest i would suggest that but i don't think you should go that far. what i would say they wanted to skip ahead to the more chilling efforts as opposed to content filtering o even considering it. >> the point is content lting mate work to some extent. the sameent in achieving the government's interest. in the relevant inqs not content filtering work. does it achieve thenterest of the same degree? as justice barrett indicated. justice bre opinion whether it's right or wrong at that >> justices kavanaugh, alito,

barrt, i would look at the district fding that petitioners appen 112- 114 about all the gaps in texas approached to regulate foreign bsites are going to be completely undetre and vpn minors tech savvy minors can used to make sure they see like they're outside of texas but you have to search engines, he of social media put all those are dec outside the scope of texas law. the only wayids are going to be protected from the sources readilyilable. >> that is an underive argument. a state have to tackle everyas aspect of the problem or else they can't do anything. >> all i need to suggest is a genuine effort, a serious effort to regular in this area it would look the federal laws are honors were considering. irsptive of source of certain content that's sexually implicit inappropriate for minors. >> whatean genuine and

serious? >> anger genuine and the interests. i think their interest is a broader antiporn interest in accessing this content.ts from they want to it more difficult. they want to make it costlier, ant to make it chilling. it out justice kavanaugh what i woulday is crediting the cour concerns and the concerns of responsible government that wants to regulate here, you should wait for a government that actually shows they are making serious headway to tackle the problem. >> could i take back to jester adjusterbarrett initial questio? this is about bri-a-mortar stores. if there's an ageerication ements about pouring magazines, also s to strict scrutiny should that be analyzed the same way? parks i need t see the law. i would pay. i don't think you need to see the law. it's just this ageification requirement but it applies to

brick-and-mortar stores and it really plays to theibution of printed smut. >> here's all i mean justice kagan. that was age verifn takes the form of an affidavit or show your birth certificate that would aptly be of course be subject to work at the age verification requires the same kind of documentary proof or whatever that this block does. going down the new york law i understand your honor's question we subject to strict scrutiny. surely satisfy that scrutiny unless it w gratuitously designed to chill the adult cu. >> why is it that would satisfy strict scrutiny this lot is not? >> is tough to manage a house to be getting after the point of int-of-purchase exchange to a minor short about your honors scribing assuming this is a traditional sort ofaw. if that's the case and

entirely on content blocking the availability of c blocking >> do not think entirely jti kagan. you go to the store the clerk i looking at an id, thin a special cost associated with that. every single user and the internet contextour multiplying this cost $40000 per 100,000 users is found at district court as a minimum a rious burden on the speaker. we agreed the integer for justice we have a lock that ads as this law does saying you are sponsoring sexually ex content onlin you must answer to across-the-board age verification mandate. that's content -based discrimination print that's a ent -based burden that should always figure. >> i'm sorry. i want to do a little bit i'm going to try. do you agreet least in theory, brick-and-mortar institutions

should not be treated differently than online and vice versa? we should not have a constitutional regime that prefers technology over another. he said as much in wayfarer. >> justice do agree that principle? >> i think it'ifferent medium. i d not want to be difficult your honors question. >> i'm going to press you media.rstand there different but, does the principal apply that we should try and treat those two media is equally as >> yes in and await her. >> okay take it part of take it. >> i will stop there. >> a good idea. >> what percentage of client rial will bedered obscene for minors? eit's tough to arrive at that. >> funds and other sites all progress that is not true your honor. >> virtually all? >> no you give me the number. orph quant or

recognize a very large universe material i would note among that material is blogs, podcasts precut understand i'm asking you for a percentr. >> i cannot quantify that >> piglets more than 50%? what's a fair gas progress mo than 70%? what's your i do not want to go out on limb. i think that may beorrect. because more than 90% question. >> ther honor would be stretching upwards. >> are at 70% okay. do you agree is a compelling government of obscene materials and minors qn. >>neivocally. follow up on j corkage question. why don't you talk about popular pouring site which i gather you are representing. one the parties here is the owner of.

[inaudible] atercentage of auteur on that is not obscene to children? >> he returned with the younges minors i would agree most oft is. that is how. >> is it like the olayboy magazi you have essays are modern day. >> not in that sense but you have sexual wellness about women recovering from hysterectomies how theyld enjoy it sex. that is on there. of age verification proposals and where the industry it lines up as far as wt they think should be legislated a what should not. >> what is theecond most >> on your honor i do not know because you represent these people. >> to represent the industry the portion of the industry that answers u.s. law and jurisdiction. quickly familiar withha they have? somewhat so inhe record offer some indications are that som it is softcore by any accounts people were less rather

than more clothing we recognize but not anything anyone would think to be obscene to adults. potentially for 17 all to a pars appropriate for the minor. >> the disict court was worried this would have an effect on something like netflix, rht? is netflix a party here kuester question. >>ohey are not. is there anything in any business other than hard-core pouring party here concerned about the application of this law? >> yes. what's your honor to have the american booksellers association for you have old schools devoted s education. >> you have netflix, anything or anybody else like that who i concerned with this? soft pouring it's not something with answer to the description you're suggest earlier. they're actually going to be brought within this. >> could we get to the que

presented? the questionnted is whether or not the law passes is constitution question is what level of scrutiny, correct? >> correct. >> the isst justice gorsuch asked youhat type of scrutiny should we apply when content can be obscene to children but not obscene as to adults, correct? >>ct. >> we have at least five precedents t answer that the questiectly. >> yes. some of the materl was obscene to children. even if it wasn't obscene as to adults. because with respect to children we have said endecent material can be regular into rational, correct? >> yes >> and the law applied to adults who said you had to apply strict

scrutiny for. >> correct it was invalid. >> the answer to justice gorsuch is, let's treat every medium under thecrutiny that applies to the people affected, correct? yes. that was strict scrutiny for us buy anything else would be overshooting at least five prec. >> that's my cat as well. >> let's move from there. okay? assuming all thestions and i've been asked of you was it because this m is different, more ubiquitous, the effect on children might be greater today than was back when. that would go to weather strict scrus mets, isn't that true? what's that's exactly right. ontent filtering is no

longer as effective as we thgh and i spot my colleagues at is likely true. that would go to whether this lot meets scrutiny because age verification is more effective ght? >> yes. >> havaid all of that there has been a suggestion by the otheride that instead of scrutiny we should apply inrmiate scrutiny. assuming we apply a different level of scrutiny. i do not know why the only t times that we have applied were dealing with the effects on the rate of speech correct? >> secondary effects, traffic jams, noise, et cetera. one case that might give me pause is pacifica. specific i had do with the

radio we had aferent level of scrutiny because of that b it was not rational basis this court corre? >> correct. it was at best intermediate scrutiny. >> yes three. >> why is this different? >> two reasons. number one broadcast is uniquely regulated as a medium of expression if the court is recognized in public broadcasting in particular the et is the opposite of that. in that way t internet is developed forheecond reason the courtmpsized how much radio permeateshentire cost of the radios on you m just hear something. alogue for content filtering you do not have a user through the screen who content.ally electing certain inas evenhanded across-the-board regulatio o the content deemed appropriate for kids. ave a under inclusiveness i would it is so consp

so inexplicable it speaker basis that's another reason in our view why strict scrutiny would ply here than the cases were going too. >> tou very much counsel. in that. technological access to pornography has exploded. it's ver difficult for 15 years old or whatever to get access to the type of things that's available with the push of a buttonoday. the nature of the pornography has also changed in those 35 years. are those the sort of developments tt suggest were visiting the standard of scrutiny is something we should ateast consider as opposed to keeping a structure tt was accepted and eabshed an entirely different era? ud specifically asked you not

to they did not hold their case mr. chief justice the e to the interest does not change a saer scrutiny. it simply goes t whether the applicable scrutiny is satisfied. we are here conceding explicitl there's a compelling interest at worknhis aa. we encourage state efforts are gular in a way that's properly tailored, it is respectful of adults right really going to help protect kids. and so that your honor's i exactly her strict its work. for the reasons we were discussing it is as well warranted here as in the entire string of cases where your honors have continuously applied strict scrutiny even if there were new problems, new technologies government is trying to tackle per. >> count thank you. justice alito? >> justice s out mention they precedents have been cit by the parties in this case. she did not mention ginsburg

versus new york which was perhaps the decision the court of appeals relied on most heavily. would like you explain it right rational basis was appropriate in ginsburg and not appropriateere? what y s in your brief is the law at issue inc. ginsburg did place any restriction on adults access to sexual materials. it did not for example require sellers to conduct age verifi of adult customers. how can that be true? suppose a youngish looking store and wanted to buynsburg's growing magazine. mr. ginsburg face the possibilit o criminal prosecution if heid not verify that person was not a minor. so why isre not age vericaon built into the

issue in ginsburg? >> just to submit the bn it tailored just as you're you e suggesting with the question. most purchasers it by myself or would b the new york law saidi there is a knowing sale to a minor someone whohe seller should suspect to be a minor that's exceptional you might've discretion some reasonable effort to ascertain the age. >> what you are facing as possible criminal liability you may want to error on the s of safety. i know that when i tried to buy ne at a supermarket they require me too show it id i'm flattered by it. [laughter] about justice i do not think the senior citizen under the york law would be as likely to be asked to produce verification of age. it certainly was not an ss-the-board age verification mante i think.

[inaudible] auctioning move on to setng else. you agree the state has a compelling interest you say they ther ws ofving that interest. i just want you to go through the. other that you referred to in passing was putting some kin of a blocking device on every device you want this built into every smart phone so it's available. >> directed the click of a button requires that list burdensome? work is not burdening it's the conduct accessing extremely sensitive content online right virtue of that two sare separate transaction they are identifying themselvesn a way specific to that content the most sensitive

private compromising content. >> your clion't pay you want to put the cost on apple and google. >> is not a tax on the speaker which has a traditional concernf the first amendment. here is a speaker of a particularxpression by virtue of that content is subject to the taxpayer. >> what other ways are furthering thentest in the state should have adopted? works two more. ocking at the internet service provider level of the adult who is in charge of the account cut off at the source it does not flo the household unless the adult has authorized the other i was discussing at the state is to pursue age verification the court is to suggest thats open to the stotwithstanding the availability of these oth, let them d tt in a way that's well considered.

the age verificatnrocess is no more burdensome than it needs to be. you havrantees about what the age verificationoo like. if privacy protections for deaf nfidentiality. mechanisms that are available to the aggrieved private part each law does not answer to any. here are serce that provide age verification. and they are used for a lot of purposes for online gambling, for purchasing tobacco products. they have very t priva limitations built into them. isn't it open to your clients to use those? >> absolutely it's not. if you look at appendix 171 you can see the provisi the law that govern age verification. it has to be one of three th either digital id which everyo agrees is not available in texas.

the number one alternative is not there to be usedy the be thesecond is a government isd which everyone agrees is exceptionally chilling perhaps the most chilling way to identify yrself to a hostile government. the third is dependent upon mmercially reasonable methods that rely upon transactional data. that's things like your mortgage >> you couldot use jody for example? >> know we cannot use that we do not think so. by all indicationss ruled out. they do not pretend to mary up there proposed forms of age verification with what texas has described ans a form of verification. tt something that's been addressed by the texas ag where that using a service like that would satisfy the rments of the statute question. >> the tax else's texas did suggest narrowing construction that was enforcement challenge with the luminary injunction there's just not opportunity

their child narrowing construction. that is the real thing despite of us.eir assurances in support part i fight age verification has inherent toys. >> everyone knows we are honored just said. >> justice? >> ginsburg. to the court relied upon. that was a child. objecting is not a store. as a child saying i should not be barred from viewing indecent materials becdults showed it,orrect? >> correct. >> the only rule there is what level of scrutiny applied to a law that applies only to children, correct? what the court said is what is indecent for an adult could

obscene basically for child seen materials onlyave to satisfy rational basis. >> that is right note justice from brennan's opinion it was exceptionally clear about what you are justng, what was and was not being addressed. >> in terms of ginsburg being a prec is not a precedent involving a burden on adultery. >> our challenges so it on lf of adults were not invoking thts of minors. >> sable was a case there's burden on children in the burden on adults the court applied a rational basis to the burden on children explicitly a pride st scrutiny to the burden on adults correct? >> yes. we had directed precedent that t said you applied different scrutiny to each category. >> that is right i would know in reno justice o'connor separate

opinion differentiate between the rights of minors versus the rights of adults which are rate addressed in that opinion two. >> justice kagan? justice gorsuch? >> i thought ginsburg was a to minors it was not that minor asrtg any rights. he was charged and convicted of crimes knowingly just selli minors, right? works forgive me fgree with both you and justice sotomayor prively one of us can be right. >> here is how i square this. child by the seller invoking the rights of minors. that's where his focus. his right to sell to minors. heas convicted of a crime knowingly selling tors. as your honor knows in the context of theve breath the availability of the overbreadth challenge can invoke the rights of others and that's exactly what i understood for justice brennan the challengers there

invoking the right. y. okay. do you agree he was challengi criminal conviction knowingly sell question works i'm not in to disagree with the procedures the substance. quit your distinction of ginsburg as they are did not have to check every id is that your distinction question correct lbity from it knowing sale per. >> you think a that would require brick and mortar stores to check all ids would be issible quite. >> of the gibby's sje to strict scrutiny potential adult shows the burdens we show here you would it's a problem for my guments would not be anywhere ne a strong i do not envision any such account i do not know of any such challenge being brought i'm not suggesting the court should rights opini he in a way that invites us challenges. cost of the respect to age verification online which you treat is a different kettle of fish. gambling, age id is required by ate is not involving protected

expression i'm not bringing the first moment charge. >> a point to get a gun, s amendment got into that online question of a different standar were not concerned with children the same way we don have all the precedents that callor strict scrutiny when you burdens on adults. quote vote and some say cap to show government id cards were no suggesting that's an issue brick all those but this is different? wh'sour honor is different. partners because the internet part of the law and part of it is because rich on burden. >> okay we do have an amicus from the age verification provider saint this can be done now online. anticipating and talking about justice o'connor's very thoughtfcurrence of reno sickness technologies going to change. they say it has iee changed we do not have much of a record given this is not a pi but when we do abouthat question is inmbt upon the texas

legislature to makecord show wrestling with this reservation. >> proxima incumbent upon the challenger to the law especially in a facl challenge to make thed question works under strict scrutiny texas bears the burden it i content you have the instruction of this court there was clear as can be dan ashcroft and no nsideration by the texas slature about content filtering. that gives likelihood of ess out of the gate. as found the district short we showed as implement by hb81 will be invading pvacy part one last point, this is that one thd igger. by your honor is a more targeted law. a more tailored law that ss here's a particular concern we are regulating according to that. t you do but her stement the who bring facial challenges have especially hard roll, nd, but row to hoe.

>> to think we've done what moody's would require any challenger to do we have shown the heartland applicatire unconstitutional. when it comes to a lack o tailoring as you ean on these particular challenges the analysis onlyets worse for texas but we do not read moody's to transform part of first amendment so you can never bring up first amendment challenge when y dealing with certain unknowns and a wide array of speech. plustice kavanaugh? >> the questions about what is before us, just whether we apply height and scrutiny do we go on to apply-scrutiny? you when you're opening asked u to restore the injunction order to restore the injunction as you are asking we have to maken assessment of likelihood of success on howhe standard is

applied not to do with the standard is that. >> correct. spectfully making the ask of the court but we recognize you can stop sho >> okay. do you dispute the problem texas isargeting children's access those who do not dispute the underlying problem we support efforts what songs are properly tailored per. >> do youispute the societal long-term with rampant access to pornography for children? plextice kavanaugh it's a combo get a question i do n know i can speak to definitively. i would say thishe's a is a robt discussion and healthy discussion whether all sortsf things involving screens, the internet and social media and

interaction over the internet. whether those are unhealthy f children. we understand this is part of that discussion but i just do not think it's can find is your honor would suggest what the question to pornography. and thinking back to ashcroft 20 verification technologies become cheaper more effective at least that is what's reped tos you dispute that? >> i think the technology has evolved. the forms of a verification built into the law are absolutely susceptible because you can get the supposed proof ashcroft?ince the time ofhether >> it has improved. i don't fit for purpose european countries france and others are reiring a verification for >> they hav avoided the uk has

actually suspended age verification pendi technological developments. they the eent the waves they are doing that that's fundamentally different from texas. because this your honor knows europe has all sorts of ferocious privacy protections of penalties if they are violation for quick that's a fair point. on the change in technologie, how do we evaluate the nature of smart phones that did not exist the time of ashcroft? >> it tells you that this law is not going to accomis its aims because a smart phone can access foreign websites you can use a vp up at a click of a button to seeme you're not in texas. you go to the search engines you o through social media can access the same concept the way the kids are likeliest too hb 1181 by f designed is nothing i do mean nothing to address this.

>> againsking those questions because you are asking us restore the perimeter ju. therefore we need to have a sense of the question. >> i appreciate the question. how do you with a cike ashcroft as to evaluation of the facts on the ground as opposed to the legal staar articulation? >> ashcroft was on point here is the way of the world for all time. >> think is permissible looking at it n the technology has ev with the smart phones, with the experience the problems caused by chires access to pornography we now sentially agree with justice breyer's evaluation of how to apply t standard progress asked respectfully know.

we are here on up limiter injunc. >> the likelihood we would agree too. i think the district court has work too as reflected in its undisturbed, on challenge well substantiated findings abohat the record says that. >> you agree to restore employment injunction by this court we would have to find have a likelihood of success on how atever level of scrutinys applied, correct? i've a friendly amendment to that. directed by the district court did abu discretio by episode concluding pnarily and protecting likely success based upon permanent record for that's exactly what ashcroft address. that's exactly what's before you. >> thank you very much. >> jus bear. qu about level of scrutiny. there are significant ences between this law works on the way the law worked in ashcroft. we all agr understood you to concede earlier t only

rational basis would apply if a minor by the first event challenge to the law the law very specifically tracks only the category of speech that minors have minors hav no right to access, current right question. >> i do agree that but i would note here we do not of the age of a minor in question. i don't to prejudice the right of a second 17 year old a centum to the rights or through yet we are not asserting any. >> point taken. 'm getting at her thinking whether strict scrutiny ishe right standard. draw the line between speech that's entirely unprotected under and burns it with the age ashcroft to absents the age

rification defense. agree. i'm just exploring this with you. is not altogether take the content off the table age on this argument for not being strict scrutiny not being al basis maybe they should be thinking of this the verification burden to access the material i d have to see the contents to see whether age verification applies. every check of the billboard triggers content scrutiny.

they are not putting anyone out of business speakers cannot continue to spe here a playboy dealing with restrictions as an effort is an effort to say were going to channel this expression burden was analyzer differently that lease for purposes of the applicable state of scrutiny. i guess i don'tndstand how justice bear hypothesized wt would be consistent with what we said in reno. it's potly harmful speech

there's the issue there sues a large amount of speech adults have a constitutional right to receive. percocet thing is prettykson surprised by yourcession to justice kavan that we have success.aluate the likelihood of i have a district court that issued april limiter injunction. in a court of appeals that you say are erroneously stated. i do n know why if we determine the court of appeals applied the wrong sta and vacate its ruling the district court injunction does not just come back into effect. you are not asking us to issue pishat right? >> that's right. cooks we are in a situation where we don't hav be reaching that merits of success. what we are doing is evaluating

the court of appeals was corre when it said this was supposed to be evaluated under the rational basis standard as opposed to strict scrutiny, right question asked all i meant to suggest more guidaeather than less in the opinion as to why eensively the district court did not use the disn because it may not be if they disagree with you. this is my other question you'd youdiffer fmhe government insofar as the government says just decide the wrong level scrutiny was apply here send it back t fifth circuit to apply it too. yoe no, we should be applying theard for strict scrutiny. at's what's opening the door to the que are getting tailored.ther this is narro whether or not the content filt software isng

long standard fifth circuit and send it back progressive want to be disagreed united states unless i lost. we do notav much disagreement on this but we are talking about undisturbed, on challenge findings and determination that follows in our view fromhis prospect. given the detour taken by the lower court i think it would be helpful. would be rming. >> and they can decide whether nothing district court findings sustain thiser the proper stanrdorrect? >> that can jusackson. >> found that with respect to ginsburg where the fifth circuit was correct to loo the precedent. you admitted your truck m person who was convict and he

himself was an. i understood the court who has told us what the issue is. first about the court and the opinion says theerson's contention is the broad proposition the sco the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to dependn where the citizen is an adult or minor. he was saying this is varies adults and minors.it the court said it's enough for the purposes of this cas that we inqui whether it was constitutionally impermissible for new york under 17 a restricted right and that assured two adults to judge and ine for themselves what sex material they read. this was right of a minors case the person appeared to be arguing that you could not have this law because it burns the right to minors. is that the sit we have

>> is a fundamentally different challenge i disagith you. i agree the couas exceptionally clear and ginsburg about adjudicating only the rights of minors in the face of a challenge that it understood to be confined to the rights minors. >> here we have a challenge in the person is say fine, whatever you do withs. what we are suggesting requiring adults too something, to do this thing. to access this material burdens our first amendment rights for that's a different issue. >> exactly right adults can speakhe website that spo this content have to answer to the age made it a greatost to break. >> mr. fletcher? >> give mr. chief justiit please the court we agree with petitioner's the fifth circuit was wrong to appnly rational basisiew because texas content burden on speech that is prd for adult

similar federal law this court agreed the basis for applying a different sd here. the state fm restricting the description of pornography t childrenine. justice s have done it in ick-and-mortar stores and theaters. the application o strict scrutiny w urge the court to emphasize three points. compelling interest in protecting children from arthel dren online secon loss during that interest is about as long as it does not burden adult access more than necsa to exclude children. third, ashcroft per luminary application oftrict scrutiny 20 years ago d not prevent courts frompholding age verification requirements today. the verification experience has shown other approaches are not working for a walk on the courts laws the jusce departm was

arguing inav of. and playboyoft. either of those that y ever suggest or argue that this should be a lower standard question because we didn't every one those cases before sable was the first one we argue for something like scrutiny under pacifica. we know the next one weekend about pacifica and made an argument similar to the secondary offense argument my s in texas make here. playboy w be again invoked an justice breyer and dissents me the argument. to concede and ashcroft. >> do you think it is appropriate in this context to protecting children to compromise the strict scrutiny? >> are not described his current term i would say it's

appropriate for the court to emphasize that it's going to be eaor states to satisfy strict scrutiny in this context because of the very unique nature of the interest year. normally the government does not have legitimate much less compelling interest on its content. here there is a specific category of space defined by its content. speech that seen as the minors but eve agrees the state not only h a legitimate interest but a compelling do not access that speecht is defined by its content. it's going to make easier based on thent narrowly tailored. >> will be easy enoh for this law to pass? >> i don't know about ts law. with not taking a position on that. >> you'vn staring at this and this law is pretty similar to 20 others that are out there. you must have some sense even if you don't want to say particularly this look there 20 laws out there are some of them

going to pass through the eye of the deal here or not >> let me type the question work late justice thomas did my answers yes too. >> and not talk met some imaginableersion. some version that states have enacted. >> and give a sc example but we defended the lawf this court and ashcroft even after the district court in a third circuit in this court for a no reason to think would come to any other conclusion about a l that look like that today. the reason hesitating on state laws i do not know there's not much variation in state laws all that raise questions we have t texas lawuestions of what the laweans that would but one is the one thirdlysis requirements petitione sate the lot requires age of an entirete even if it has substantial amount of content that is protec my friends from texas if you segregate out the content by an

agent gauge yo not age negate the rest of the c of the website. the second one is issue at my friend alluded to earlier about whhethods of age verification are allowed the us briefs in texas highlight the new biometric methods tt seem significantly less restrictive. there is a question as a colloquy illed whether texas law would allow those methods require some physil identification or transaction of some kind. the last one that'slrdy come up is which minors aree talking about we talk about minors like to get the plaintiffs stays teen even as the youngest minors we were descending a similar law we took the position that means all mirssppropriate value even as two olderinors. i think the law becomes much easier to defend if texas courts would adopt the same interpretation of the texas law here. >> if i can add one thought.

this court has sai in a series of recent person mimic cases can be an important guidepostn deciding what standard of review applies and also thinking how to that standard in particular circumstances. reflected in ginsburg to be sure but also in a much broader family of laws that restricts the distribution of rial as justice o'connor explained in footnotes one and two adult theaters, adult bookstores, and magazines, is a long tradition of restricting this material through age verificatiohods that are less formal because his justice alito it's just a requirement don't sell to minors and a clerk in the physical world conjuring up by looking at the person and only requiring id if then is not obviously of age. there is a long tradition of imposing age restrictions on the distribution of this ml that supports the ide >> mr. fletcher you take a ginsburg to be more than we are done with the rights of minors.

it does also impact how we think about the burden placedn op, adults to ensure minors don't have acces it speaks to tt as do our traditions with respect to adult theaters and many other things. it's a tradition that'sartedly reflected in the law i read ginsburg the same way strode justice jackson pickets a necessary ition of the decision >> ownhought that law was invalid. every understood the content base law that everyone understandsn on adult is okay it's requiring id is the least resve way. ihink there it was abandoned in the court suggests some sort ge verification or something like that will be aetter way to do it too. >> rosenberg on the speaker progxactly same thing with adult theaters and so and rth.

>> okay. >> if we were to vacate the fifth circuit as have suggested there's some question and discussion about whathe world looks like then. with the limiter injunction of the district court room back into effect this law that's already taken effect will now no longer be enforceable? >> will question for the fifth circuit that this court vacates and sends it back to the fifth circuit whenhe court mandates issues the appeal would circuit and go back to the state of the world before the fifth circuinion of the state of the world was the fifth circuit had granted a stay of up limiter injunction ending in appeal i would open to the fifth circuit he benefit of whatever guance is court provided in its opinion to decide in the first instance whether to reinstate that same state pending its further consideration fco to do that if we told they'd done the wrong standard? i suppose it have to go back to the rig standard. interimhat happens? >> some period of time a think 35 days before the court mandate issues of our texas would go to the fifth circuit in

meantime and asked to reinstate e stay. i think the circuit should look at it with the benefit of this guidance and note as a party have informed the court on monday a panelf the sixth circuit stayed uper injunction tennessee is very similar law in the city state was appropriate even on the assumption of strict scrutiny applied. >> mr. fletcher i say or share some of justicemas' discomfort with watering down ct scrutiny. i think it's common ground even with petitioner's the state has a compelling interest in otecting minors. i think petitio we back your challenging even a different law but they've left open the door to the p possibility. i think there is sense the state should be able to pr minors. there's not a whole lot room in the way weditionally understand strict scrutiny for that to happen.

we have this series of precedents. can we find room for the intuition within the parameter of the decision set? this is the case where the state hampelling interest in restctg speech based on its content. that is exceedingly unusual. that is because of the unique nature of the interest here. i think we give states the room they need in this context but without watering down the other contexts. >> thank you, c.

in terms of the precedents you lking about, there are cases where the technological developments because the court to reconsider the precedents developed from the horse and buggy days, prior to significant changes. why is that not a pertinent factor to consider here? >> i think it might be pertinent but the court has also said more recently including lt term that the principles of the first amendment do not change with the technology and has tried to maintain the fundamental first amt principles and apply them to new technology. all the technological development's which are incredibly relevanhe question sit more naturally in deci how scrutiny applies and why states are able to satisfy scrutiny than it does to revisiting the fundamental standard reports the principles of the first amendment do not change with technology the

application of technolothe first amendment technology can alter what is afctg the principles. how you apply speechtections face to face might be different uations where you are talking about the telephone and all sorts of other things. historically, there been changes in the applications of law. the basic principles are the same. one othings that is striking about the case is t dramatic change in the technology of brick-and-mortar stores to the access to pornography which also seems to be dramatically different from what it was 40-whatever years ago. >> there has been a lot of change but that sounds a lot like the argument where they

id the content on social media plat was totally differe from the editorial page of the miami herald. that calls f aifferent standard of scrutiny. this court said we willp the same standard but acknowledge plication might be differentause of the different facts. i think the way to be consistent would be to stick with the same dard. if that does not persuade you, i think it might be a reason to revisit the standarcrutiny if you reach the conclusions scrutiny does not give states the freedom to sol ts problem. we thire is reason to believe it does leave them that freedom. i think that is another reason not to revisit the presentence. >> you wld admit we are in an enrely different world. >> i would not disagree with that. the world was a world of dial-up

internet with ashcroft. >> now, every child has a smartphone in their pocket with high-speed access. >> did not change in technology affect our opinion from the reversal from quill to wayfair? >> i do know. that was not a fstmendment case. >> i understand that. >> i do not mean to suggest technolo inever a reason when the court is revisiting a president. we think texas has not fairly squared up a request before the court takes the separate the fifth circuit thought i was complying. if you were to look at ashcroft based on a party making a pitch to overrule, technological change might be relevant.

>> as s the fact you thought your argument in some of the ear cases, like reno, you suggested a lower standard ofcrutiny and thought it would play a role here. >> we did but this court disagreed. >> you threw in the towel. [laughter] >> three times. >> you should not feel offended by that. [laughter] >> justice alito. >> i do not want to belabor ginsburg too much but it is a precedent of the court. you do not want us to overrule ? >> at all. >> you then have toxplain why it is not very important if not controlling here. what i have heard from you, correct me if i am wrong, is

ginsburg did not conside burden on the seller for a who wanted to purchase the magazines great does that how you would distinguish i >> i agree with the second part. i think it was a conviction of the seller but t aument he was making was children have the same first amendment rights as adults in the way the court framedrgument was the law does not invade e area of freedom of ereion to minors. >> i do not think that is the argument ts made. ginsburg was represented by sophisticated attorneys. here is something they said in their brief. the policing problem would become an impossible burden leading the bookseller to abandon sales even to adults, thus the adults would be deprived of iterature because it was not available for distribution to adolescents.

the argument was before the t. the court presumably was aware of it, took account of it, and said the proper standard of buke is a rational basis. opinion.t see that in the we usually read the court precedents and what the court decides. the other i will say is the court did confron arguments of the rights of adults burdened in trying to protect adolescents d reached a different conclusion. have argued for intermediate we scrutiny befor i think there was forced to that the reasoink we have a rational basis revw gument would b a rational basis ofely

keeping it away from children even verification requiring you register with the state to keords of who is viewing what might be a rational way of keeping it from children but those are hard to defend and i think that is another reason why ginsburg means rational basis. >> i want to go back to your assertion that if we thought the standard of review we would beg required to cause the preliminary injunction issued by thdirict court to spring back into effect. the question borus is whether we should reverse a cision that stays that iminary injunction.

would we not have the power to reverse thdecision in so far as it said rational basis the proper standard for the port to use but lt in place because we thought etically this law would with that beyond -- would that be beyond our power? >> what is before you is the fifth circuit's final decision reversing. if you vacate that decision, think normally it would return the app the fifth circuit and the ball would be in the fifth circuits court. >> it would return the case to the fifth circuit on the terms we thought were appropriate and returning it to the fifth circuit. >> i dnosuggest the court lacks the por it wanted to grant some stay it i'm here is a way for the court to d that if the court the opinion, i'm sure the fifth

circuit would follow that idce deciding what the status quo ought to be while the litigation continues. >> just so i have them fresh in mind, you mentioned certain matters you thought would be important to crify under state law in making a judgment about whether the law satisfies strict scrutiny. d you pick those off again for me? >> there are t one is the 1/3 requirement. the second question is the permittedds of age verification and whether the biometric methods comply with texas law. the third is the question about when texas law refers to obscene to minors, which minors are we talbout? the youngest or minors?

>> justice sotomayor. >> i am not sure i understand your first points. uld you go through that again? >> one of the points the petitioners make is the te law requires age gating of a website if more than one third of the material on the website is sexual material harmful to minors. petitioners say that means we need to age gate a website even up to two thirds of the material is constitutionally protected to minors. that means the stas not narrowly tailored and restricts sweet unnecessarily. i understand my friends from texas to say texas law does not necessarily mean that and a wide site the best website might be o comply by age gating ly some material. i think the website is easier to defend if

you accept construction along those line >> with respect to the perm methods of i.d., the counsel for petitioner says the more secure meths, the more secure methods are prohibited. do you think that is ambiguous? >> i do know the answer to that end i defer to the parties on that. e xas law seems to say you need to have a commercially reasonable method that relies on public orvate transactional data. i think the question would be whether something that relies on biometric, face recognition, voice reion, satisfies the requirement. >> so toxtent whatever methods are found to be permitted under texas law, if

they have greater risk to the user, that would be part of the calculus? >> i think concerns for the use or part ofalcus, yes. >> thank you. >> justiceagan. >> i want to talk to you about li on a blank slate. pretend ecedents do not exist for a moment. i w come back and ask you about the precen, but pretend they do not. make it reallylank. it does not seem you are required to say we first argued it in a non-strict scrutiny way because obviously you were dendg federal statutes. that was the most natural wato defend them. i want to take out the fact your first argument was the not strict scrutiny argumenan say, as you are stanng here on a blank slate, it seems to me there are possible splor dangers either way. one ishepillover dangerf

you relax strict scrutiny in one place and all of a sudden strict scrunyets relaxed in other places. the other is the spillover danger of you treat a clearly content-based law is not requirinstct scrutiny and all of a sdeyou start seeing more content-based restrictions that do not have t satisfy strict scrutiny. i want to ask you hoyo weigh those dangers. i read usaas just got to be the case that stecan do some regulation -- i read you as saying this has just got to b the case that states can do some gulation in this area. how does thatappen? does it happen by notching down strict scrutiny or by saying this s orestrictions comes outside it? >> you read me correly. i genuinely there would have been two reasonable way go at the problem. it is a unique feature in th

first amendment where you have the same speech protected as to some people and not to others. everyone agrees everyone has a compelling interest in restricting access to that speech based on its content. it iecial, unique problem. one way to approach it would have been to say something less than strict scrutiny even though it is content based. the other approach, the one i am advocating, is to say strict scrutiny applies differently. i think it would need to say regular stcrutiny standard applies differently because of the special features here. as a matter of first ples, i'm not trying to duck the question, i'm genuinely saying i thinkither of those would have been equally workable. but we are not writing on a blank slate. i think this is what tips the scales. >> the next question i was going to ask is, what about ashcroft and allf r other decisions makes you think they are simply not distinguishable in the way that one might want distinguish them? >> i think ashcroft is

particularly hard because that was a at looked in terms almost exactly like the law issue here. i take justice barrett's poi that age verification was an affirmative defense. was basically exactly the same. the logic of the court's opinion earlier line was defining sexual material harmful to children. this category of material kids can be prohibited from seeing that was a content-based this gets tlete my answer to your earlier question about why i am more worried about the second category spillover. that starts to bring ijust this particular corner of the first amendment law but also the court's cases frothe other places where the court has laid down this is what it means to have a content-based law. i if you start now trying to carve back on ashcroft and the otherases you would have

spillover into those broader areas of first amendment law when recognizing strict scrutiny functions differently here and is limited to this corner of the w. >> thank you. >> justice gorsuch. >> wt to follow up on ashcroft just a little bit. you seem to think that is the major impediment. the most direct one, sure. >> that was a p.i. where the government did not contest the level scrutiny? es that help? >> i think it was a p.i. i think the court was self-consciously tentave in some parts of its analysis, especially the application of i do not think the court was tentativt what the relevant level of scrutiny was. i read it to sawe have a content based restriction of speech so strict scrutiny applies.

>> also incomplete factual record wt repeatedly emphasized. >> completely agree. all the more reason wrts have gone overboard is treating strict scrutiny as controlling. even 20 years later, i would put the standard ia different category. >> what do think about justice o'connor's concurrence in >> i think there is a lot of force in herdeas. lot like justice kagan's and there ought to be to translate that same idea into the world of the internet. e not advocated for the that. standard she advocated for their bewe view the court's precedents as requiring a higher standard. as far as the thrust of her logic and concerns about what states ought to be able to we agreed. >> you agreethe principal there is a compelling government interest. there must be some white in the world to effectuate that? >> i think there is a lot

force. i hesitate to say that is always true in every circumstance. in this area, yes. >> justice kavanaugh. >> to follow up on justice gorsucjustice alito's questions about if we vacated the state of play. decision.tay before the so, is a p.i. in effect or not in effect afteoumandate issues? >> i would think absent further , i do not want to speak for the parties if there is something am missing, but i would think absent further action from the fifth circuit, ts court vacates t fth circuit decision and remands, the result woul be the preliminary injunction would come bac effect. if i were defending the before that happened, i would renew my previously granted moti a stay pending appeal and i would make arguments about why pending the fifth circuit's

further consideration. >> do you think a stay should be issu >> we have not taken a position because it bound up with uncertain qutions about what the texas law is. >> the courts will have to mak a likelihoodf success determination. you have been looking at this a long time. you do not have a likelihood of success assessment? >> we do n >> ok. on ashcroft 2.0, how do you think we shouldandle specifically the application of the strict scrutiny standard? ? should we just say it is overtaken by events, no longer valid? tell us how you think we should phrase that. >> you mentioned starecisive -- starry desisis. i read it as self-consciously very tenta before emphasis was on the

and discretion. thla couple of pages of the opin the court is saying nothing we are saying kps them from concluding the strict scrutiny is satisfied. i think the court can say given that, nothing in the opinion recloses the courts from deciding 20 years later with the benefit of experience that strict scrutiny is satisfied. >> one queioon how you would apply strict scrutiny, it seems to be one of the parts because everyone agrees compelling int "appropriate tailoring," which i think is a good phrase. one thing that concerns me is people sre is a less strict of alternative. it is important to say any less restrictive alternative has to serve the compelling important interests to the same degree. m i right in sayi tt?

>> i think you are right. i agree that i important. >> as are the sort of things the fifth circuit can say on remand and would, right? they would go through thrd and try to assess whether the district court got it right with respect to other alternatives and that sort of thing? >> yes. >> that is why the government is saying, why don'u remand it instead of us taking that on? >> indifference to the court's usual practice -- in deference to the court's usualractice, we think there are reasons for the court not to wade into it now, exactly. >> with respect to the technology question earlier, i' trying to figure out which way it cuts that we have n advanced in technology. i can see that it cuts both ways. on one hand, weava new set of circumstances that allow for minors to get aterial easily and it is ubiquitous but i think the district argument is

the technology heighte risks and burdens on adults trying to access this material if they have to do a biometric stand or certain things that are impinging on privacy in a way technology now allows. it is not clear to me just the fact that we have ne technology is running in favor of allowing this law to stand as is. i agree with tha tt technology does not necessarily tug in one direction. nt to ask both of those questions. what would say about technology and the burden of two servations, the factual observation is i think the world now includes more options to verify your identity than in ashcroft that are more broadly used one of the things that gives us moreonfidence is this is being us in the gambling industry in buying alcohol.

it is a much more coart of society. that can give courts more confidence saying this is an riate method of age vericaon. the second one is a legal point. i there is some tendency on the petitioner's side and district court to say the levant burden is, will people be c from doing this? i think burdens on privacy are important the court should ask those questions objectively, no suggestively -- subjectively. there might be people embarrassed to show i.take a magazine off iraq. the question is whether the or unnecessary.ely excessive >> i noticed your brief did not say anything about whether the facial nature of the challenge affect society. i presume in thinking about it that is because the distinction between fand as applied is not have any bearing on the

question of the level o scrutiny. is that right? >> exactly right. before deciding whether the law is invalid, you have to decide the relevant standards. that is the qu we take to be squarely presented to this court now and that is whye focused on that and not have the anf that might cash out. >> think it. >-- thank you. >> thank you, counsel. mr. nielsen? >> mr. chief justice, and may it please the cou, titioners do not disputeebsites are not meant for children, that they harm cldren, and that children are watching. e court faced the same situation with brick-and-mortar stores and apply rational basis to a law limiting adult content to adults. this case is the digital version of ginsbur

three cases prove tnt. nsburg itself applies rational basis where a store can only avoid liability by making "a reasonable, bona fide attempt to ascertain ue age of customers. saplies rational basis for speakers to separate the auen before speaking a message to some but t all. in ashcroft 2.0, the court did not apply rational basis because congress limited by 1990's technology went well beyond ginsburg and sable. to understand ashcroft, you have to understand ashcroft 1.0 and look h the court treated bl age verification today is simple, safe, and common, includg nidentifying means. petitioners' vieofexas law is contrary to texas' view of

tes w and the fifth circuit's view of texas law. regardless, if strict scrutiny applies here, texas would have to satisfy strict scrutiny to keep kids out of strip clubs. this court's cases tnot require that, neither do history, condition, or common sense. and all of the events, even if heightened sy applies, texas easily satisfies it, especially facially. we have tried content filtering for decades. the problem has only gotten worse. i welcome the court's questions. >> the ginsburg sounds simple. but in the tech cases we have had recently, we aking about hundreds of millions of members to certain sites. billions of visits. multi-billions if not trillions of exchanges.

how do we determine burden, assuming we agree with you, and i think most people do, that kids are to be protected, how much of a burden is permissible on adult' first amendment rights? >> so long as ginsburg is part of this court's canon, any burden less than the burden at issue in ginsburg neily must be ok. >> how does that translate in a world in which you are not talking about one-on-one transactions but billions of sactions? >> that cuts in favor of texas. one of the important parts of modern age verification technology is that you can do it the fifth circuit was clear that under texas law, biometric scanning is ok. in other words, there is no i.d. or anything like that. it is just a face scan if that is too much, i ul

port the court to the brief of the age verification providers association. there all sorts of things u that no identifying information. >> you are talking about rational. you would think rational basis wouldermit quite a high burden on the first amendment rights of adults versus strict scrutiny. >> this is where i think it is important to understand the scope of ginsburg. ashcroft 2.0 isdent. we are not fighting that -- ashcroft 2.0s president -- prr ecedent. as long as you are verifying this is a kid, that is rational basis. yond that, you are in the world of ashcroft 2.0. >> what if veg took the form of a law that the state says what we would like to have is everyone who comes in h needs to present a copy of their passport, a copy of their birth ificate, and an affidavit their biological parent?

is that also rational basis in imposes on adults?n that it >> no, your honor. >> why not? >> because that is far in excess of what the court recognized in nsburg. >> but the courtn ginsburg was not analyzing the means by which age vetion was occurring. the court is allowing for age if verifica how far can a state go in terms of burdening adults showing how old they are? and it seems to me that you're conceding that at some point a state would not be able to require an adu tjump through a million hoops to prove their age. and if that's the case, isn't that the work of strict scru i mean, i thought that what stcrutiny was doing was assuring that the burden that's imposed is one that is ssary. because we understand that adults would ordinarily have

access to this matere appreciate the state's interest in protecting children, but we're not going to let the state impose a thousand things that would make it really, really ha adults when there are other alternatives to protec children. i thought that was the whole point of the strict scrutiny analysis. mr. nielson: so are two precedents that the court has to give weight to both of them. there is ginsburg and there's ashci. justice jackson: i understand, but you're reading ginsburg to suggest that the court has essed every kind of age verification that a state require of an adult. to the extent that ginsburg, you say, is focused on minors and states "protecting minors" and the factthe burden falls on adu prove their age is reot a big deal, i'm just state looking at ginsburg could

do something very, very burdensome in orr to protect minors. mr. nielson: yeah, what i'm tryingo y is i'm not suggesting that you could do anything under this. and i know that because of ashcroft ii. there are two cases, both of which are precedents of this court, both of which have meaning. stice jackson: but wouldn't rational basis allow ydo anything? i mean the state would "it's rational that we have a parent affidavit b people can lie about their age and what we want is to make sure that minors are protected." mr. nielson: and ashcroft ii ysat some point, you've gone beyond ginsburg. ginsburg, we know --s we're writing ginsburg out of the law, if it's the burden is no greater than g an id in ginsburg, that's not strict scrutiny. jukagan: well, i think what the question really was is, what is that point? what is the point at whichou line in your view?sburg/ashcroft mr. nielson: yeah, so this is where i thk u can't understand ashcroft ii without understanding asro i. and in ashcrt the fight

between the plurality and the rest of the court was, hey, does sable mean that it applies whateverheechnology is? in other words, whatever the burden, if you can't do it, w cares? oroes sable mean that it has to be technologically and asonably possible? the court disagreed abt at. i don't know where the answer is, where the courn that extension of sable. i do know thaturg is a holding of this court that says, "so long as the burden is showg id, that doesn't trigger strict scrutiny." we are less than that. don't know the exact line. justice kagan: can i ask you general -- and this is, i'm shifting ground some, buy've now heard mr. fletcher's three concerns or three questions about your law. i think you heard them twice, so you probably mr. nielson: i wrote them down. justice kagan: ok. how does texas's lawfare given those three concerns? are thnuine concerns? mr. nielson: yeah, they are not genuine concerns. first, the one-third requirement.

i have two points on that. that's how states generally define sexually-oriented business illinois says you're an adult bookstore at 25% of your coen th's how san francisco defines whether you're an adult bookstore. so that's point one,us generally. but specific to this statute, i urge t crt to look at the language. one-third requiremenapies to whether they have to satisfy whether the law kicks in, but it's not referring to the content at issue. i'm okg at the language here in section 129b.002. thkeywords are "the material." is that referring back to the material on the website or sexually harmful material to minors? no texas court has had an opportunity to lk this. this is a facial pre-enforcement challenge, but our reading of that is it's going to be limited to the sexually harmful rial. justice kagan: ok, number two. mr. nielson: number two is the permitted methods, biometric. we have a holding from the fifth

cion this. this is at petition appendix 11a. biometric scanning is fine under fifth circuit law, and under texas law we aith that. that's in our brief, that is the position othattorney general's office. and three is, "obscene as to minors." again, two points. this was the fight, or one o the fights, at issue in ashcroft the court said we followed t same language and the court said that was fine in ashcroft but our reading, aga texas, i'll tell you, texas courts read statarefully. they follow the text of the statutes. i am lookingt r definition of sexually material harmful to mino. that's section section 129b.0. the third part is we define minors as those under 18. taken as a whole lacks serious literary, artistic, political, or scientific value for minors. in other words, that includes up to people who are 17. so their idea that --

juste gan: so if i understand you correctly as to those three, as to number two and number three, you say, "wl,ven if that's a legit concern, our law is ok with respect to it." mr. nielson: yes, your honor. justice kagan: i don't think that that's quite your answer with r to number one. is that right, or is that wrong? mr. nielson: think we're fine with number one. my point is that even if i'm wrong about how texas law works, we'till ok because then we're like illinois and san francisco. don't think i'm wrong about how texas law works. justice kagan: i see. mr. nielson: if you take the content and yopuit behind an age screen, we're not counting that. justice kavanaugh: your -- justice alito: so if you -- keep going? justice kah: no, i apologize. justice alito: jt clarify with respect to point one, so if a particular website has some hardcore pornography that obscene as to minors, an it has videos of somebody reading lady chatterley's lover

or something like that, can the latter be segregated? mr. nieln:o i have to argue with one hand behind my back e no texas court has an opportunity to look at any of is. i'm just giving you my reading of the statute and baswhat i know about texas courts, and the answer would be, yes, it could be segregated. justice sotomayor:uto court has said that yet. mr. nielson: correct. and that's part of the problem. i know theou has had some unhappiness with these facial pre-enforcement challenges. this should be exhibit one in the case against them. justice sotomayor: this law doesn't protect someon osays you can't retain this information. the other side in its brief argues that thatoe't mean you can't sell it or give it away. mr. ni yeah, some responses to that. one, i don't know if that's even technologicay ssible. i don't know how you send the information without having at least instantaneously retain it. that doesn't make any sense to me. also --

justice sotomayor: well, you have to receive make a choice. someone is receiving it to make a choicepresumably the law says after you've made the choice ithis an adult or a child, you've got -- after u've made the choice, is this an adult or a child, you've got to delete it. mr. nielson: cor justice sotomayor: but in that interim, wreceive the information, before i make the choice, i could just give it awanother entity. my name, when i visit a website, unless i've prohibited the website from doing that, my viewing history, everything is automatically transferred to other people. i'm wrong about that. that again, i don't know the technology -- justice sotomayor: well, that's the point, because i do't know. mr. nielson: i don't know how you do it. t i went anyway, so this is why it's important. justice yor: that's once you get to a trial, and somebody figures ut. mr. nielson: i'm saying that under the fifth circuis view of the law, which this court did not grant cert to review, biometric scanning is ok. so there's no identifying rmation to even turn over.

so it wouldn't make s en if you transferred it, you're not transferr identifying informatio identifying information, no one does it. again, i point to thf, to the age verification association -- justice sotomayor: we're talking in a vacuum bei don't know the record. i do understand thmetrics sort of looks at a face. mr. fletcher said it looks at a hand, or someone said it looks at aan i have no idea how it works. but i do know that dna evidenc i just touched, and i don't know if biometric information can be used to create other things. i don't knowf this. none of us do. so the question is before any judge can determine whether this law e extent of its burden determine that, doesn't it?to mr. nielson: yes, your honor. justice sotomayor: that's my only point. mr. nielson: sorry, can i have

just one? i'm sorry. justice alito: keep going. mr. nielson: just one more second. the last point about all of that is, of course,etitioners get to choose who the age verification provider is so if they don't like the age vetion provider's policies about that, well they can stop that too. it's within the per. they have self-help measures. justice kavanaughink earlier when you were discussing ginsburg, you said ginsburg applies to age verification requirements, and thus, age verification requirements get rational basis review, and 's how you distinguish. but then you said, "not if they're too burdensome," which doesn't sound anymore like rational basis review. but i'actually not interested in whether we call it intermediate scrutiny or strict sctiny or rational basis. for purposes of this question, is the statement of prinple, first amendment principle that you're seeking at a broad level, age verification requirements are permissible so long is they're not overly burdensome on

adult access? mr. nielson: yes. yes, your honor. and that'i understand -- justice kavanaugh: and those are the exact adverbs and adject"overly burdensome," or do you have a preferred statement? mr. nielson: i guess i would say so l it's incidental to verifying age. again, i don't know what overly burdensome means. justice kavanaugh: th's a little different. exactly. ok. and then you have to look at how much burden is tn the adult access, which i think you've conceded. conceded is the wrong word, but junowledged that that is going to necessarily be part of a few times if it's more thanid the ginsburg burden, at some point, it mas into too much. mr. nielson: correct, honor, because we are trying to reconcile ft ii and ginsburg. justicnaugh: and you've -- and again -- mr. nielson: i don'ink i conceded, but -- ice kavanaugh: yeah, i'm not using the word conceded in that way. you acknowledge that a law, for example, that mr. fletcher identified, that just banned all rnography, on the idea that that would serve the intesin preventing children from accessing it, that' impermissible.

mr. nielson: correct. that's the second part of sable. justice kava right. and then also to justice jackson,e requirements for age verification were so onerous and unnecessary that they adults from accessingented many constitutionally-protected speech as to adults, you also acknowledge that would be impermissible. mr. nielson: yes, your honor, because again, that's how we read ashcroft ii. justice jackson: but, mr. elson -- jubarrett: mr. nielson, why are you saying that it's likeve-out of content discrimination? because you heard my interchange with mr. fletcher and also with your friend on the othe there was a way of juste if exploring how do wk about ashcroft ii. and there is some content discrimination here, right? because you do have to look at the content to decide whether the age cation requirement applies. so i take your answer to jus kavanaugh when you say, "no, no, no, no, no. said."be what mr. fletcher that if rational basis review applied, they could ban the

whole category because that would be a rational way of protectingren. you say that's not the case because we look at ginsburg, and it's just age verification. elson: yes, your honor. justice barrett: so is this age verification carve-out, like its content discrion doesn't trigger strict scrutiny if we're talking about age verification? is that the argument mr. nielson: iue there's two conceptual ways to understand it. i'm not sure what ginsburg, whh e they did. one is if it's just gatekeeping, as long as you're allowed to have two different groou have to have some way to tell the difference between the two. and if it's just incidental, the gatekeeping, that doesn't itself trigr rict scrutiny. that's one theory of ginsburg. the hetheory of ginsburg is that just looking at idcation just isn't a titutionally cognizable burden. that would fit in with the crawford line of cases for voting. that would fit with the american library association, where they say going to the librarian, that's embarrassing. that's just not a

constuonally cognizable burden. justice sotomayor: but if -- justice kavanaugh: but you said -- justice sotomayor: i understand you correctly, you are saying, this goes back to justice jackson's hypothetical, at when the burden gets too great, when they'resking you to do all these unreasonable tngs, that's the point at which, if i understand you correctly, tell me if i don't, it flips into not rational basis review, but into a heightened review, strict scrutiny. mr. eln: correct, your honor. that's how we read ashcroft ii. ice sotomayor: ok. peculiar, isn't it? bit i mean, it's obviously the case that the extent of the burden should matter a t the constitutional analysis, but it usually matten you're applying whatever standard you'lying. it doesn't usually push you like, "oh, this burden, it's very hard to meet this age verification requirement." so because that's true, it pushes you into a differen standard of scrutiny. i don't know if i can think of anything like that in our law.

mr. nielson: yeah, i agree. that is a curious effect of reconciling ginsburg and ashcroft ii. justice kavanaugh: but it's just inherent in having an age. category that can't access and another category of people that can, and you have to have said, for determining it.st but i think in reply to justice jackson and justice you've said, "yes, it could get too burdensome in other words, even age verification, i think justice kagan was just saying this, even age verification could get too burdensome if you did things like passport or something like that. mr. nielson: correct, your honor. the's -- justice kavanaugh: again, ether you call it whatever you call it. justice jackson: but i think what you call it is important. justice kavanaugh: well, i'm call, it can't get tooever you burdensome, right? mr. nielson: yeah, so i mean the north star here is so long as ginsburg has soming, so long as the burden is not greater than the burden at a

ginsburg, rational basis pls. justice jackson: but mr. nielson, the burden was not the issue in ginsburg. at's my only problem with what ginsburg to be establishing the initial principle ou start with, that it's ok to treat minors differently than adults, period. but that's the holding of ginsburg. it wasn'lking about the extent to which figuring that out was going to burden adults and how much the adults' first amendment rights were impinged perating that principle. it was the first case to establish, in this c, that minors don't have the same rights as adults to access this material. then we go on in other cases, in the cases that justice sotomayor raises, to evaluate, "ok, now separate these two categories of people," you're absolutely righ that we have to have some way of but these other cases are about how burdensome the way of doing

that is, and t extent. and you seem to be agreeing that there's a at which the burden that you're imposing on adults are going to be too much. and my only point about the rd mattering is that i thought the work of rational basis review and strict sc was to evaluate whether iss because the adults have aay, certain scopirst amendment rights, you can only impose a burden that is the least restricty of reaching your compelling interests. so, we don't need a new set of ples or tests. we have a test. e test is strict scrutiny and the government says, mr. fletcher, says there might be a way in whichhiactually satisfie. mrson: so that test can't be right. and the reason why it can'

right is it would mean that if a ate wants to stop kids from going into a strip club, have to satisfy strict scrutiny. justice jackson: no, because kids going into a stub poses no burden on adults. that was going to be my other question for you why would saying a kid can't go into the strip club pose any burden on an adult who wanted to? mr. nielson: if we said, "you needok at id's, if you have somebody, you can't tell they're an adult or not t into a strip club." ice jackson: so we apply strict scrutiny. elson: you would apply strict scrutiny to that. justice jackso then we say, "is this the least restrictive means?" and you say, "yes, fine. you can do it." mr. nielson: that is not at all consistent with ouition and history. as i undstd strict scrutiny, again,w there's different views on this. as uerstand strict scrutiny, the idea is this is generally ok, but sometimes we'll make an exception if there's really extraordinary reasons for it. but in our history, he always said kids can't come and look at this stu so it seems not correct to me as a historical matter to say,

"well, actually, it's always beenmptively unconstitutional. but on this one thing, we' done it forever, strict scrutiny somehow has always been satisfied." justice barrett: mr. n, i want to take you to the questions that justice kagan was asking mr. fletcout the dangers. i just want posit this, this is all just pretend. win, that texas should win.ld and jukagan asked if that were so, if there is a way that states should be able to re, and the federal government, should be able to regulate this, we have to de how our first amendment precedent might accoe and justice kagan identified for mr. fletcher two o. one would be to say that this kind of regulation can satisfy strict scrutiny. and the other might be to say in this context, intermediate scrutiny makes more sense. i just want to take rational basis off the table. mr. nielson: yeah. jubarrett: what do you think about that? mr. fletcher told us what he thought about the dangers that would lie in either approach. mr. nielson: yeah, si very worried not about this law. i think we're going to pass strict scrutiny. i hope that that is where the co, that this law passes

strict scrin i am worriut my strip club example or any other sexually oriented businesses. if we start saying that the standard is strict scrutiny, i hope this court says, "oh, it passes strict scrutiny." but there's a whole bunch of law on strict scrutiny and a whole bunch of diffeudges across this countryoing to apply it. there's a bunch of cases that say fatal in fact. and we're going to have a lot of pi's and a lot of emergen litigation. that's a problem, a real world -- justice kagan: but that wouldn't be true necessarily, if we wro the kind of opinion that mr. fletcher had in mind, right? because then you would say, "this is the kind of strict scrutiny we're talking about. this is what will pass it. take us seriously." mr. nielson: so that's within e ntrol of this court, for that language to be. i hope if such opinion gets written, it is very, very like this.ouldn't get these pi's justice alito: general nielson, let me see if this is consistent

with what you're saying. if a law prohitsr regulates a type of speech that is not entitled to any constitutional pron, the content of the spch does have to be examined at the outset to determine whether it falls within that category. and the fact that that preliminarexination is necessary does not mean that the law ctent-based and therefore is subject to strict scrutiny. mr. nielson: yes, your honor. justice alito: so whatmay suggest is that while this preliminary examn does not render the law content-based so long as it is not too excessive, then strictiny is not triggered. but ifosses a certain point and it becomes too ensome, so that it is more make that thresholdnecessary to determination about whether the speech is constitutionally protected, then you go into another level of scrutiny. mr. ni yes, your honor.

anink that ginsburg is consistent with that view. justice jackson: what about packingham? justice sotomayor: the problem is that thch here is not just about obscene speech, which is not subject to any rational basis ny, only because i's -- i'm not even thinking rational basis, because obscene eech is illegal for adults or minors. correct? mr. nielson: it can be made illegal. yes, your honor. justice sotomayor: it can be madeal, not automatically, but it's not protected speech. e speech is not protected. mr. nielson: exactly, your honor. yes. justice sotomayor: problem is that this law don't protect, doesn't make illegal just obscene speech. it makes illegal obscene and nt speech that might affect children. but adults can view indecent speech, correct?

mr. nielson: yes, your honor, but not if children are there. justice sotomayo let's not quibble, not children are there. but you now have to looker than determining whether something's obscene. you have to figure out whether it's indecent for children. correct? mr. nielson: yes, your honor. i th. justice sotomayor: yeah. sot's not merely checking to see if something doesn't have curse words or some fighting words or something lik. you're actually asking adults to not look at somethtil they do something something that's legal for them to look at. mr. nielson: yes, your honor. and i'm saying that so long as ginsburg has any meaning -- justice sotomayor: counsel keep saying ginsburg. i look at the court's decision. the facts are that a bookseller was found criminally liable for selling, i think it was to a 16-year- the age doesn't matter right

now, but an underage child. and his attack, and this is the court saying, "it'nothat new york was without power to draw e ne at age 17. rather, his contention is the broad proposition that the scope expression secured to a citizen, to read or seed material concerned with sex, cannot be de to depend upon whether the citizen is an adult or minor." and the court, he insists, "that the denial to minors under 17 of access trials condemned by the law, insofar as that material is not obscene for persons of age of oolder, constitutes an unconstitl deprivation of protected liberty." so it wasn'thage verificationwas at issue in ginsburg at all. the court had no reason to address it. court was speaking to ast the

involving rational bass whether obscene nt materials had to be made accessible to kids under 17. we can all read ginsburg, but do you have any language in ginsburg that even addresses the age verification issue? point me to one line in the entire petition, other than describing the law, that talks about the burden of the age verification. mr. nielson: look at the very paragraph of the opinion. that's when they'iscussing whether mr. ginsburg had notice, the statute.ligations weer the court was very clear. to be sure, that was framed as a due process type claim. it was verclr that they said, "no, you know." justice sotomayor: it was a due process. mr. nielson: well, it's very clear. yoknow what you're supposed to do. i would also point to th language from the brief that justice alito already mentioned

earlier, "i've not heard of a court limiting a case to less than its facts." and there he raised the argument saying, "if this happens, i'm not going to be able to sell it to adults." and the court said essentially rational basis. that'i re it. justice sotomayor: thank you, counsel. justico: tnk you. justice thomas? justice thomas: no. justice alito: anything further? justice kagan? justice gorsuch: one quick question on ashcroft. itrossed the line in your view because, and i want you toil in the blank. and one possibility, of course, might be that the law there made it illegal to post, that is to even create, to disseminate the information, with the age verification beingnlan affirmative defense. mr. nielson: yes. that is there. there's three points on this. again, ashcrofoesn't say what the burden was. justice gorsuch: yep. mr. nielson: you have to read into it. one is t that is clear from the opinion

and ste stevens concurrence, that's a big problem. another problem, if yogoack to the district court, was to do this, you had to have databases of credit cards. this is not the w in texas. you can't keep the data. so there are no databases. and the iris, again, to go back to ashcroft i, because you can't separate communities und 19's technology, if you send it out to the whole world, that's effectively meant some places, content that's no seen as to minors would be behind age screens. and that's a burden that has not existed here. we know for a fact that they can segregatbyeography. when texas's law went into effect, pornhub left texas. they're still operating in louisiana with age verification. so we know that that's no longer . justice gorsuch: thank you justice alito: justice kavanaugh? justice kavanaugh: just to follow up on justice alito's formulation, which i thought was helpful. verification requirements generally permissiut they can become too excessive to use

his formulation? or i thi and i discussed, or can become overly burdensome? mr. nielson: yeah, and that's why i use incidental. ice kavanaugh: right. and if so, impermissible. but otherwise they're generally rmissible and commonsensical. i think that's the framework. mr. nielson: yes, yoor. justice kavanaugh: ok. and then just ybe to piggyback on justice gorsuch, this law is not too excessive or overly burdensome because, and fill in the blank. mr. nielson: it's less than in ginsburg, and we know that because you don't even have to provide identifying information. so in ginsburg, if there was a marginal case, you couldn't tell if it was a kiorn adult, you had to l the id. you don't have to do that under texas's law. so however you read ginsburg, we arless than that. justice kavanaugh: thank you. justice alito: justice b? justice barrett: mr. nielson, there has been some sion about what happens to the pi if we vacated and remanded to the fifth circuit.

can you just say what your view on that is? mr. nielson:ea so the view of texas is if this court were to vacate e fth circuit's decision, then the fifth circuit's stay would go back into effect because it was onl the fifth circuit's decision that took out the stay. that would take a separate order. now, i know that the other side is going to fight me on that one, so we probauld do what mr. fletcher suggests and go back to the fifth circuit for claricion. i ask, if anything else, that the language is clear to the fifth circuit, that it knows it can re-institute the stay. that gets lost itrslation sometimes when you get a decision froth court. they're like, "oh, i guess we can'hat anymore." we don't want to get sum rep' we respect the court. if that were to happen, i ur the court to please let the fifth circuit know. but r ew is that because it was this decision that the court is reviewing that vacated the fifth circuit's stay, e ay would then spring back to life. justice alito: justice jacon? justice jackson: yeah. your last colloqh justice alito suggests that your

argument is that rational basis review applies to state laws that serve merely to screen certain people from accessing online content that they have constitutional right to access. or at least it could be thou of in that way. and neither party cited case in their briefsi wonder whether this would run afoul of packing i don't f you're familiar with that case, but it's one in which wed at convicted sex offenders who were trying to access social media we, state law precluding and we applied heightened scrutiny even thousort of raised the same kind of dynamic that you say rational basis review would apply to. so i think we would have to try to figure out how the standard principle that justice alito articulated would be istent with that case as well.

mr. nielson: yeah. i confess, i've probably thought i read every one of this court's recent first amendment cases preparing for today's argument. i did not read packingham. i don'know, your honor. but i do know that we are in the exact same context as in gi. so whatever the scope of ginsburg, we fall within it. in a way, on whether or not we agree that ginsburg was speaking to the burden or speaking to the age requirement as opposed to making the initial determination that minors can be treated differently than adults. mr. niel trust your honor on that one. justice jackson: yeah. mr. n: i would also say the other way that you could think about ginsburg, of course, hat an id requirement is just not a constitutionally cognizable burden at all, which would be consistent with some of this court's othes, and not fall within the gham -- justice jackso fifth circuit didn't hold that, right?

that that would be -- mr. nielson: no, your honor. justice jackson: the fifth circuit at least saw that the first amendment was implicated by this. and in fact, i thought they thought it was a content restriction, but the ginsburg still applied to have a different rule in this situation. . nielson: all i'm saying is that you can conceptualize nsburg in multiple ways. we are ok under all of them, but if there are problems that way, i would urge the court just to k, "well, look at the voting id cases," and that sort. we are ok under those line of cases too. justice jackson: thank you. justice alito: thank you, counsel. rebuttal, mr. shaffer? mr. shaffer: thank you, mr. chief justice, and may it please urt. let me start with ginsburg, if may. we've talked a lot about the that that opinion was addressing only the rights of nors as invoked there. i would just also note it was verification mandate.rd age it was not operating in a context where you had a way to screen out minom specific content. and it didt say if more than one third of a store is inappropriate for minors, minors have to be kept out of the store. this lfers in all of those respects. estion about, let's wipe away for the moment, justice kagan, the precedents that this court has laid down for decas about sexually indecent speech

at's inappropriate for minors internet.ronic media and via the let's wipe it away for a moment. i strongly urge ourt to stick with strict scrutiny as the applicabndard of reviewhewe're talking about content-based burdens on spea this court has an area of law s clear, that is well understood, that is reliable, that will withstand mounting i in varied attacks. because we all know when strict here.iny applies, it applies and i would urge the court to stick with it even if we forget about thonoint precedents fothmoment. there are principles that i think are important,ble principles that will serve us well going forward. yes, in this context, but also in others. and so that brings m jtice kagan, to your question about what about 20 othela that by some views, may look a lot like texas's. i can tell your honors, this is the worst of them. this ithworst of the laws. it has the health warnings where tes telling these targeted

speakers and their users that things, contributing tother prostitution, child exploitation, child pornography. you have a hosti rulator who's saying to adults, "you should note re." you have no consideration whatsoever of content filtering asumber one alternative that this court had called out you have age verification that just, respectfully, does n answer the description that texas's amici are offering and that mr. nielson is cong to today, which is age the plain terms of the law would permit. and you have none of the protections th y would expect from a responsible regulator who's concerned about adults' interests here. you don't have enforceable rights for them. you do not have privacy protection. you do not have confidentiality of information. you do not have the government saying, "we cannot p on this information and use it against you."

all of tha yr honors, you should await a state or the federal government doing its work, showing its homework, having something other than the ill-tailored law that yo here, and a blank legislative record that tells you nothing about why texas would've arrived at a law that looks like t unless it was out to chill adults and chill speakers when it comes to expression that is clearlprected as to adults. and i want to offer the ashcroft la if i may, as a point of mparison. we think that this is the -- your honors. the court was looking at federal legislation on a well-developed, comprehensive legislative record where you could see what core was doing and why it was doing it. and it was a serious, ge effort to regulate justice kavanaugh, as we were all of the content that was deemed inappropria f minors regardless of its source. texas's law is not fithat purpose, for reasons that have effectively by texas and by its amici. and you can find i well-substantiated set of findings fm e district court

about how under-inclusive this law is. your honors have room, and i understand sympathy, for ata that is trying to do its job to regulate in this area conscientiously. and i want to assure justice barrett, when we talk about scrutiny that is strict in lucky enough to learnfact, i was constitutional law from gerry gunther. that resonates. none of us is suggesting that, in this context, strict ny is fatal. it is not. it should not be. we've conceded that there is a compelling interest here. the question will always be, has rnment tried to arrive at a less restricti -has it tried to do this in a way that is not unduly burdening adults and is truly protecting kids? his law answers to strict scrutiny, as it has long been understood, i do think, respectfully, this becn easy case. the last point for mr. fletcher, and i agree with so much of what

he says, he talked about tradition as a guidepost here. and i would just note the tradition that we have on the internet. on the int ustice kagan, we've come a long way from when we were f talking about the internet and had to explain what it was. but reno and ashcroft have been absolutely fundamental to how the internet h deloped as a free medium of expression, as our modern public square. and thtradition on the internet is to say that it will be free and that it is incumbent upon parents to screen o content that is inappropriate for their kids. that's where the law should stay. justice alito: thank you, counsel. the case is submitted. >> watch c-span's new members of congress series where we speak with both republicans and democrats about their early lives, previous careers, families and why they decided to run for office. on monday, our interviews

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