all members have five legislative days to extend their remarks. without objection, so ordered, adjourned.

burden to constitutionally protected

speech. >> we will hear argument in case free sech coalition versus paxton. mr. schaef. >> thank you, mr. chief justice. in this case, the fifth circuit the more lacked form applies t constitutionally protected speech basedcontent specifically by imposing an age verification barrier befor anyone can acces sexua oriented. and a judge explained in his dissent. the strict scrutiny applies to any content based burden on web site texas' law is more problematic in its failed predecessors and entire web sites depending o one-third is deemed

inappropriateor minors and has scientific health warnings that despe being enjoined texas' intention to dete adults assuming they cleared the age hurdle. to abatrict scrutiny could open a wave ofations that imperil free speech. this court could restore the preliminarynjunction. the districtou found that provisions are widelyon underinclusive. content filtering affords one alternative that is less restrictive. ashcroft teaches that a preliminaryction should stand. at result your honor does not denigr in protecting children nor does it prevent tech as to carry its burden n now and

final judgment. rather, reinstating the policemen iion would remain fidelity for first amendment and rights and precedents. i welcome the court's questions. >> can age verification systems ever be found constitutional? >> governmould start with -- >> can age verification ever been constitutional? >> ion think the court nee to close the door but ines it to be of the sort that texas is ad vow indicating which is different. >> what would that look like? >> what you have there are ways ifying age short of identifying the iivual short of the transactional data. and so you would have less identification of individual and ivy protections that are assured by the law. you would have private rights

and enforcement. everything depends on the attoeneral who is validly hostile to theirites and users. and you shave confidentiality that is legally assured and the state should be providing assurance that it will not misusenformation that is being collected. none of those features are present in texas' presentation to age vation and nothing in the legislatived and nothing in the cigses of this court that how the specific provisions of this have been tailored with sensitivity to the privacy concerns or being eve cashous and making sure you have meaningfu protections that protect minors across the board. if we start wh --ncil -- counsel, explame why the barrier is on-line than a brick

and mortar setting. a lot of your concerns. that is a feature of the ternet. you don't have privacy if you go into a store 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 context. >> the answer is you are creating a permanent record on the internet when you provide this information. it is a tge for hkers and something different than physical space and you have co filtering that is -- >> well, in ashcroft 2, the court expressed anxiety about the fact that technologs so fast that the five years between that case and the case in the supreme court that

tegy may have moved beyond the record, it's been 20 years since ashcroft, the iphon was truced in 2007. kids can gine porn from gaming systems, tablets, phones, computers. content ftering for all those different devices is difficult to keep up with. and i think the explosion of addiction to onli porn that content fil i't working. >> content filtering technologically better than ever and employed by this court and employed in workplaces throughout america and it can work specifically in this context of parents protecting eir kids through all the devices. you c >> this court has a i.t.

department. >> this is designed to be implemented t home. if you look at 27576 mr. allen testifying for c filtering. it's a question of opon and as to that it is telling t texas has not consideredhe possibility of encouraging parents. there was a proposal to this law at devices would ininstall content filtering. texas doped that whout any explanation whatsoever and find that in 25556. texas decided to empower parents and without explanation decided they would skip ahead. >> do you know a lot of parents who are more tech savvy tn their 15-ld children? kids may be ahead of parents.

it's -- >> it's a problem with filtering, isn't it? >> i don't thinko. this is to withstand and sophisticated people. ome on, be real. there is a huge volum evidence that filtering d work. wehad many years of experience witht d we have manys who have adopted age verification requirements. you think -- why are they doin that if the filtering is so good? >> they made no efforts to encourage content ftering. it t. those are not befores. as unconstitutional because it was motivated by improper bias the part of texas legislator

that voted almnanimously for this law. quest i would suggest that but i don't think you should go that far. wh i would say they wanted to skip ahead to the more chilling efforts a opposed to content filt or even considering . >> the point is content filtering mate work to se extent. to the same extent in achievi in the relevant inquiry is not content filtering work. does it achieve the interest of theam degree? as justice b indicated. justice breyer opinion whether it's right or wrong at moment seems correct today. >> justices kavanaugh, alito, barrett, i would l at the district's finding that petitioners appendix 112 -- 114 about all the gapsn texas

oached to regulate foreign websites areoing to be completely undeterred and unchanged. vpn minorsech savvy minors can ed to make sure they seemed like they're outsidefexas but you have to search eng he of social media put all those are decidedly outside the scope as l the only way kids are going be protected from the s readily available. >> that is an underinclusive argument. i don't think we've said that as a state ho tackle every aspect of the problem or else they can't do anything. >> all i need suggest is a genuine effort, a serious effort to regular in this area it would look like the federal laws honors were considering. irrespective of source certain content that's sexually implicit inappropriate for minors. >> what you mean genuine and serious? >> anger genuine and their interests. hink their inter is a broader antiporn interest in

preventingng adults from accessing this content. they want to make itore difficult. they want to make it costlier, they want to make it chilling. it's out justice kavanau what i would say isreting the courts concerns and the concerns wants to regulate here, youhat should wait for a government that actually sws they are making serious headway to tackle the problem. >> could i take back to jester adjusterbarret itial question? this is about brick-and-mortar stores. if there's an age verification requirements about pouring magazines, also subject to stcrutiny should that be analyz same way? parks i need to see the l. i would pay. >> i don't think you needee the law. 's just this age verification requirem but it a to brick-and-mortar stores and it really plays to the distribution of printed smut. >> here's all i mean justice

kagan. that was age verification takes the formnavit or show your birth certificate t subject to work at the age verification requiresame kind of documentary proof or ever that this block does. going down the new york law i understand your honor's question we subject to strict scrutiny. rely satisfy that scrutiny designed to chill the adult customer. strict scrutiny this lot is not? >> is tough to manage house to be getting after the p of point-of-purchase exchange to minor short about your honors describing assuming this is a traditional sort of law. >> if that's the case and entirely on content blocking te availability of content blocking in the online space. >> do think entirely justice

kagan. o to the store the clerk is looking at id, this on a speclost associated with that. we have age verification for every singler and the internet context in your multiplying ts cost $40000 per 100,000 users is found at the district court minimum a serious burden on the speaker. we agreed the intor justice we have a lock that reads as this law does saying you are sponsoring sexually explicit content online you must answer t across-the-boar verification mandate. that's content -based discrimination print that's a content -based burden that should always figure. sorry. i want to do aittle bit i'm going to try. do you agree at least in theory, ick-and-mortar institutions should not be treated differently than online and vice versa? we shouldot have a

constitutional regime that prefers technology over another. he said as much in wayfarer. >> justice do you agree that principle? >> i think it's a different medium. i do not want toe difficult >> i'm going to press you. i understand theferent media. but, does thencipal apply that we should try and treat those two media is equally possible? >> yes in and await her. >> okay i'll take it part of it. >> i will stop there. >> a good idea. >> what percentage of client obscene for minors?dered it's tough to arrive a that. >> funds and other sites at all progress that is not true your honor. >> virtually all? no you give me the number. orphic not quantified or recognize a very large universe material i would note among t material is blogs, podcasts

precut understand i'm asking you for a percentage for. i cannot quantify that >> piglets more t 50%? what's at the fair gas progress more than 70%? 's your honor i do not want to go out on aimb. i think that may be correct. because morehan 90% question. >> there your honor would be rehing upwards. >> are at 70% oka do yougree is a compelling government of obscene materials and minors question. >> unequivocally. follow up on jeff's corkage question. why don't you talk about popular pouring site which i gather you are representing. one of the parties here the owner of. [inaudible] what percentage of auteu that is not obscene to children? >> he returned with the youngest minors i w agree most of it

is. that is how. >> is it like the old playboy magazine you have essays are modern day. >> not in that sense but you have s wellness about women recovering fromrectomies how they could enjoy it sex that is on there. of age verification proposals and where the industry it lines up as far as what they think should be legislated and what should not. >> whats the second most popular pouring site? >> on your honor i do not know use you represent these people. >> to represent the ind the portion of the industry that answers u.s. law and jurisdiction. y familiar with what they have? somewhat so in the recffer some indications are that some of it is sof by any accounts people were less r than more clothing we rze but not anything anyone would thinke obscene to adults. potentially for 17 all that to s

propriate for the minor. >> the district court was effect on something likean tflix, right? is netflix a party here kuester question. >> no they 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 have the american booksellers asson for you have old schools devoted to sex education. >>ave netflix, anything or anybodye like that who is concerned with this? soft pouring it's not something with answer the description you're suggesting earlier. 're actually going to be broughtn this. >> could we get to the question presented? the question presented is whetr not the law passes is

what level of scrutiny, correct? >> correct. >> the issue that justice h asked you what type of rutiny should we apply when content can be obscene to chil but not obscene as to adults, correct? >> correct. >> we have at five precedents then answer that the question directly. >> yes. some of the material wasbscene to children. even if it wasn't obscene as to adults. cause with respect to children we have said even indecent material can be regular into rational, correct? >> yes. >> and the lawed to alts whd you had to apply strict scrutiny for. >> correct it was invalid. >> the answer to justice gorsuch is, let's treat everym

under the scrutiny that applies to the peopleected, correct? yes. that was strict scrutiny for us overshooting at least five be precedents. >> that's m as well. >> llet's move from there. okay? assuming all the questions and i've bnsked of you was it be this medium is different, ubiquitous, the effect on children might be greater today than it was back when. thatould go tother strict scrutiny is mets, isn't that what's that's exactly right. >> content filtering is n longer as effective as we thought and i spot my colleagues that is likely true.

that would go to whether this lot meets suty because age verification is more effective right? >> yes. >> having said all of that there has been a suggestion by the other side that instead of scrutiny we should apply intermediate scrutiny. level of scrutiny.fferent i do not know why the only two times that we have applied intermediate scrutiny as they were dealing with the effec on the rate of speech correct? ondary effects, traffic jams, noise, et cetera. the one case that might give me pause is pacifica. specific i had to do the radio we had a different level of scrutiny because of that but it was rational basis like this court correct?

>> correct. it was at bestmediate scrutiny. >> yes three. >> why is this different? >> two reasons. number one broadcast is uniquely regulated as a medium of pression if the court is broadcasting in particular the internet is the opposite of that. in that way the internet is developed for the second reason theou emphasized how mh radio permeates the entire cost of thes on you may just hear something. no analogue fornt filtering you do not have a user specifically electing certain content. in wasvenhanded across-the-board regulation of the content deemed appropriate for kids. you have an under inclusiveness would say it is so conspicuous so inexplicable iaker basis that's another reason in our view why strict scrutiny would apply here than the cases were ing too.

>> thank you very much counsel. in that. technological access to pornography has exploded. it's very difficult for 15 years old or whateve get access to the type of things t available with the push of a button today. the nature of the pornograp has also changedn those 35 years. are those the sort of developments that suggest were vi the standard of scrutiny is somhi we should at least consider apposed to keeping a structure that was cepted and established an entirely different era? saud specifically asked you not to they did not hold their case mrchf justice the extent to the int does not change a sander scrutiny.

it simply goes to whether the aple scrutiny is satisfied. we a here conceding explicitly there's compelling interest at we encourage state efforts are tailored, it is respectful of adults rights is really going to help protectids. and sohat your honor's is exactly her strict its wor for the reasons we were discussing it is as well warranted here as in the entire string of cases wour honors have continuously applied strict scrutiny even if there were new problems, new technologies government is trying to tackle per. >> count tha you. justice alito? >> justice sorted out mention precedents have been cited by the parn this case. she did not mention ginsburg versus new york which was perhaps the decisionhe court of appeals relied on most heavily.

i would like you to explain it right rational basis was appropriate in ginsburg and not appropriate here? what you say in your brief is the law at issue i ginsburg did not place a restriction on adts access to sexual materials. it did for exampuire sellers to conduct age verification of adult customers. w can that be true? suppose a youngisking person went into mr. ginsburg's store and wanted to buy a growing magazine. mr. ginsburg face the prosecution if he did not verify person was not a minor. so why is not age issue in ginsburg? into the >> justoubmit the built in it tailoust as you're you are suggesting with the question. most purchasers it by myself or

purchaser i do not think i would be the new york law said there is a knowing s to a minor someone who the seller should suspect to be a minor that's exceptional you might've subject to the ss discretion some reasonabl effort to ascertain the age >> wha y are facing as possible criminal liability you may wt to error on the side of safety. i know that when i tried to buy wine at a supermarket the require me too show it id. i'm flattered by it. [laughter] about justice i not think the citizen under the new york law would as likely to be asked to pro verification of age. it certainly w not an across-the-board age vetion mandate i think. [inaudible] auctioning move on to something

else. agree the state has a elling interest you say they have other ways of serving that interest i just want you to go through those. another that you referred to in passing was putting some kind of a blockin device on every device you want this built i every smart phone so it's available. >> dd the click of a button requiret list burdensome? works is not burdening it's the uct accesngxtremely sensitiventine right virtue of that two separate sepe transaction they are identifying emselves in a way specific to that content the mostensitive private compromising content. >> your clients don't pay for. you want to put the costn

apple and google. >> is not a on the speaker which has been a traditional concern of the fst amendment. here is speaker of a particular expression by virtue of thatontent is subject to the taxpayer. >> what other ways are furthering the interest i the works two more.ve adopted? blocking at the internet servi provider level of the alt who is in charge of the account cut off at thee it does not flow into the households the adult has authorized other i was discussing at the state is to pursue age verification the court is to suggest that is open to the state notwithstanding the aibility of these other let them do that in a way t well consire. the age verification process is e burdensome than it needs to b you have guarantees about what if privacy protections for deaf.

confidentiality. mechanisms that are available to the aggrieved private part e law does not answer to any. >> there are services that provide age verification. and they are used for lot of purposes for online gambling, for purchasing tobacco products. they have very tough privacy limitations built into them. isn't it open to your clients use those? >> absolutely it's not. if you look at app 171 you can see the provision of the that govern age verification. it has to be one of three things, either digital id which everyone agrees is notilable in texas. the number one alternas not to be used by the be thesecond is a governmssued d which everyone agrees is exceptionally chillerhaps

the most chilling way to identify yourself to a hostile government. thehi is dependent upon commercially reasonable methods that rely upon transactional data. that's things lour mortgage application. >> you could not use jody f example? >> know we cannot ut we do not think so. by all indications is ruled out. they do not pretend to mar u there proposed forms of age verification with what texasas described an is aorm of verification. addressed by the texas ag where that using a service liket would satisfy the requirements of the statustion. >> the tax else's texas did not suggest nar construction that was enforcement challenge with the luminary injunction there's just not onity their child narrowing construction. that is the real thing despite all their assurances in support

of us. part i fight age verification has inherent toys. >> everyone knows we are honored just said. >> justice? >> ginsburg. but 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 because adults showed , correct? correct. >> the only rule there is what level of scrutiny applied to a law that applies only to ch, correct? what the court said is what is indecent for an adult could be obscene bas for child seen materials only have to satisfy

rational basis. >> that is rige justice from brennan's opinion it was exceptionally clear about what you are just going, what wasnd was not being addressed. >> in terms of ginsburg being a precedent is not a precedent involving a burden on adultery. >> our challen so it on behalf of adults were not invoking the rights of minors. >> sable was a case there's a burden on childrenhe burde on adults the court applied a rational basis to t burden on childrenlicitly a pride strict sy to the burden on adults correct >> yes. we had directed prece that diret said you applied dnt ny to each category. >> that is right i wouldnow in reno justice o'connor separate opinion differentiate between the rights of minors versus the rights of adults which are separately addressed in that opinion two.

>> justice kagan? ice gorsuch? >> i thought ginsburg was a conviction of an adultho sold to minors it was not that minor asserting any rights. he was charged and convicted of crimes knowingly just selling to minors, right? works forgive me for agree with both y and justice sotomayor progressively one of us can be right. >> here is how square this. a child byhe seller invoking the rights of minors. 's where his focus. his right to sell to minors. he wasvicted of a crime knowingly selling to minors. as your honor knows in the contextf the over breath the bility of the overbreadth challenge can invoke t rights of others and that's exactly what i understood for justice brennan t challengers there invoki t right. >> okay. okay. do you agree heas challenging criminal conviction kwingly sell question works i'm not going to disagree with the

procur the substance. quit youristinction of ginsburg as they are heid not have to check every id is that ur distinction question correct liability from it g sale per. >> you think a law that would require brick and mortar stores to check all ids would be >> of the gibby's subject to striutiny potential adult shows the burdens we show here you would it's a problem for my arguments would not be anywhere near as strong i do not envision yuch account i do not know of any such challenge being brought i'm not sugg the court should rights opinion here in a way thanvites us challenges. cost of the respect to age vetion online which you treat is a different kettle of fish. gambling, age id is required by state is not involving protected expression i'm not bringhe first moment charge. >> a point to get a gun, second amendment got into that online

questi a different standard were not concerned wit children the same way we don't have all the precedents that call for strict scrutiny when you burdens on adults. vote and some say cap to show government id cards were not suggesting that's an issue brick all those arche but ts is different? what's your honor is different. partners because the internet part of the law and part of it is because rich on burden. >> okay w d have an amicus he age verification provider saint this can be done now online. ticipating and talking about justice o'connor's very thoughtful concurrence of reno si technologies going to change. they say it has indeed changed we do not have much of a record given this is not a piut when we do about that question incumbent upon the texas legislature to make a record show wrestling with this reservation. >> proxima incumbent upon the challenger to t law especially in a facial challenge

to make the record question works strict scr texas bears the burden it is a content you have instruction of this court there wasar as can be dan ashcrnd no consideration by the texas legislature about content filterin that gives us likelihood of success out of the gate. as found the district short we showed as imp by hb 181 will be invading privacy part on last point, this is that one third trigger. by your hon is a more targeted law. a more tailored law that says here's acular concern are regulating according to that. >> what you do but her statement those whong facial challenges have especially hard roll, not road, but row to h >> to think we've done what moody's would require any lenger to do we hav shown the heartland applications are

unconstitutional. when it comes to a lack of iloring as you expand on these analysis only gets worse for xas but we do not rd moody's to transform part of first amendment so you can never bring fir amendment challenge when you're dealing with certain unknowns and a wide array of speech. plexus justice kavanaugh? >> the questions about what i before us, just whether we apply height and scrutiny do we go on to apply-scrutiny? you when you're opening asked us to restore the injunction order to reshe injunction as you are asking have to make an assessme likelihood of success on how the standard is applied not to do with the standard is that. >> correct. respectfully making the ask of the court but we recogni you can stop short.

>> okay. dispute the problem texas is targeting children's access pornography? those who doot dispute the efforts what songs are properly tailored >> do you dispute the societal oblems creat short-term and long-term withampant access to pornography for children? plexus justice kavanaugh it's a combo get a question i do not know can speak to definitively. iould say this there's a is aust discussion and healthy discussion whether all sorts of things involvingeens, the internet and social media and interaction over internet. whether those arenhealthy for children. we understand this is part of that discussion but i just do not think it's can find is your honor would suggest wha the

question to porno. and thinking back to ashcroft 20 years ago until now, age verification technologies b cheaper more effective at least that is what's represented to us you dispute that? i think the technology has evolved. the forms of age verification built into the law are absolutely susceptle because you can get the supposed p of age the question was whether it's improved since the time of ashcroft? >>as improved. i don't fit for purpose european countries france and others are requiring a verification for this kind of thing? >> they have avoided thek has actualpended age verification pending technological developments. the extent the waves they

are doing that that's futally different from texas. because this your honor knows europe has all sorts of ferocious privacy pions of penalties if they are in violation for that's a fair point. on the change in technologies, how do we evaluate the nature of smart phohat did not exist at the time o ashcroft? >> it tells yout this law is not gngo accomplish its aims because a smart phone can access foreign wsis you can use a vpn up at a click of button to seemed like you're not in tex. you go to the search engines you can go through social media can access the s concept the way the kids are likeliest to do hb 1181 by f designed is nothing i do mean nothing to address this. >> again i'm asking those ons because you are asking us to restore t perimeter junction. therefore we no have a sense of the question. >> areciate the question.

do you with a case like ashcroft as to the evan of the facts on the ground as oppoo the legal standard >> ashcroft was on point here is the way of the world for all time. >> think is permissible looking at it now the technology has evolved with the smart phones, with the experience of the problems caused by children's access to pornography we now essentially agree withustice breyer's evaluation of how to apply the standard progress ked respectfully we are here on up limiter injunction. he likelihood we would agree too. >> but i think district

court has work to do as challenge well substantiated, on findings about what the record hat. >> you agree to r employment injunction by this cour we would have tod have a likelihood of success on how applied, correct? scrutiny is i've a friendly amendment to that. cted by the district court episode concluding preliminarily 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. >> justice bear. question about level of ny. there are significant differences between this works on the way the law worked in ashcroft. we all agree i understoodo rational basis would apply if a minor by the first ent challenge to the law the law very specifically tracks only

the category of speech that minors have minors have 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 torejudice the right of a second 17 year old a centum the rights or through yet we are not ang any. >> point taken. what i'm getting at here thinkither strict scrutiny is the right standard. draw the line between speech that's entirely unprotected under and burnsith the age verificati that law and ashcroft to absents the age verification defense. i agree. m just exploring this with

you. is not altetr take the content off the table the age verion is then. on this argument for not being strict scrutiny not being rational basis maybe they s be thinking of this the age verification burden to access the material i don't h to see the contents to seeer age verification applies. not every check of the billboard triggersonntcrutiny. they are not putting anyone out of business speakers cannot

continue to speak here and playboy dealing with restrictions as an effor is an effort to say were going to channel this expression the burden was analyzer differently that lease for purposes of the applicabletate ofutiny. i guess i understand how justice hypothesi what would be consistent with what we said i reno. it's potentially harmful speech e's the issue there suppresses a large amount of speech adults have a constitutional right to receive.

at's right justice jackson percocet thing is pretty surprised by your concession to ice kavanaugh thae have to be evaluate the likd of i have a district court that issued april limiter injunction. in a court of appeals that you say are erroneouslyd. determine the court of appeals applied the wrong standard and vaca ruling the district court injunction does not just come back into effect. you are not asking us to issue pis that right? >> that's right. cooks we are in situation where we don't have to be reaching that merits of success. what we a doing is evaluating the court of appeals was correct when it said this was supposed to be evaluated under the

rational basis standard as opposed to strict scrutiny, right question asked all i to suggest more guidance rather than less in the opinion as to why extensively the district urt did use the discretion because it maye if they disagree with you. this is my other question you'd youdiffer from the government insos the government says just decide the wrong level scrutiny was apply here send it back to the fifth circuit to y it too. you cite no, we should be applying the standard for strict scrutiny. that's what's opening the door to the questions are getting ab whether this is narrowly tailored. whether or not the content filtering software is working lo standard fifth circuit and send it back progressive want to

beisagreed united states unless i lost. we do not have much disagreement on this but we a talking about undisturbed, on challenge findings and deternaon that follows in our view from this prospect. given the detour taken by the lower court i think it w be helpful. woe reaffirming. nd they canecide whether nothing district court findings sustain this under the proper standard correct? >> that can justice jackson. >> found that with respect to ginsburgre the fifth circuit was correct to look at the precedent. you admitted you truck met a person who was convicted and he himself was an adult. i understood t courtho has told us what the is. first about the court and the opinionays the person's

contention is the broad proposition the scope of the constitutional freedom of expression secured to a citiz to read or see material concerned with cannot be made to depend on where the citizen is an adult or minor. he was saying ts unconstitutional because it varies adults and minors. the court said it'ugh for the purposes of this case that we inquire whether it was constitutionally impermissible for new york under 17 a more restricted right and that assured two adults to judge and determine for themselves what sexial they rea this was a right of a minors case tson appeared to be arguing that you could not have this law because it burns the right to minors. is that the situation we have here today in this case? >> is a fundamental different challenge i disagree with you. i a the court was exceptnay clear and ginsburg about adjudicating only the

rights of minors in the face of a challenge that it understood to be confined the rights of minors. here we have a challenge in which the person is saying fine, whatev do with minors. what we a sugg is requiring adults to do something, to do this thing. to access this material burdens our first amendmehts for that's a different issue. >> exactly right adults can speak the website that sponsored this content to answer to the age made it a great cost to break. >> mr. fletcher? >> give mr. chief justice admit please the courte agree with petitionhe fifth circuit was wrong to apply only rational ba review because texas law content burden on speech that is protected for adults. similar federal law this court ed the bas for applying a different standard here.

the states from restricting the description of pornography to children online. justice states have done it in theaters.nd-mortar stores and the application of strict scrutiny we urge the court to emphasize three points. compelling interest in protecting children from arthel children online second loss that interest is about as long as it not burden adult access more than necessary to exclude children. and third, acroft per luminary application of strict scrutiny years ago did not prevent courts from upholding age verion requirements today. the verification experience has shown other approaches are not working for a walk on the courts laws the justice department was arguing in favor of. and playboy and ashcroft. either of those that you ever

suggest or argue that this be a lower standard question because we didn't every one of those c before ashcroft. sable was the one we argue for something like scrutiny under pac we know the next one weekend about pacificaade an argument similar to the secondary offense argument my friends in texas make here. playboy will be again invoked an argument based on pacifica and justice breyer and dissee the argument. to concede and ashcroft. >> do you think it is appropriatehis context to protecting children to compro the strict scrutiny? >> are not described his current term i would say it's approp for the court to emphasizt it's go be easier for staso satisfy strict scrutiny in this context because of the very unique

nature of the interest year. normally the government does haveegitimate much less mpling interest on its content. here there is a specific category o sce defined by its co speech that seen as the minors not only has a legitimatetate interest but a compelling interest in making sure minors do notess that speech that is defin by its content. it's going to easier based on the content narrowly tailor. >> will be easy enough for this to pass? >> i don't know about this l. with not taking a position on that. >> you've been staring at this la for a longe. and this law is pretty similar to 20 other laws that are out there. you must have some sense even if you don want to say particularly this look there 20 laws out there are some of them going to pass through the eye of e deal here or not? >> let me the question work late justices did my

answers yes too. >> and not talk met some imaginable version. some version that states hav enacted. > give a specific example but weded the law of this court and ashcroft even after the district court in a t circuit in this court for a no reason to think would come any other conclusion about a law that look likt today. the reason hesitating on state laws i do not know there's not much variation inte laws all that raise questions we have about texas law questions of what the law means that would form the person in analysis but one is the one requirements petitioners sate the lot requires age of an entire website even if it has subsl amount of content that is protected. my friendsm texf you segregate out the content an agent gauge you do not age negate the rest of the content of the website. second one is the issue at my

friend alluded to earlier about which methods of age verion are allowed the amicus briefs in texighlight the new biometric methods that restrictive.cantly there is a question as a colloquy illustratedther texas law would those methods require some physical identification or ttion of some kind. the last one that's already come up is which minors are we talking aboute talk about mino 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 minors as inappropriate value evens two older minors. i think the law becomes much er to defend if texas courts would adopt the same interpretation of tas law >> if i can a one thought. this court has said in a series of recent person mimic cases can be a important guidepost in deciding whandard of review applies and also think how to

apply that standard in icular circumstances. here the tradihat a price in brick-and-mortar contacts is reflected in ginsburg to sure but also in much broader family of lawst restricts the distribution of this material as justice o'connor explained in footnotes one and two adult theaters, adult bookstores, books and magazines, is a long tradition of restricting this material through age verification methods that are less formal because his justice alito it's a and a clerk in the physicalinors world conjuring up by looking at the person and only requiring of age.person is not obviously there is a long tradition of sing age restrictions on the distribution this material supports the idea. >> mr. fletcher you take a ginsburg to be more than we are done with the right minors. it does also impactow we think about theden placed on people, adults to ensure minors

don't have access. it speaks to that as do our traditions with respect to adult theaters and many other things. >> i agree that wholeheartedly it's a tradition that's reflected in the law i read ginsburg the same way s justice jackson pickets a necessary implication of the on >> own thought that law wa invalid. every understood thent base l that everyone understands a burn on adult is oks requiring id is the least restrictive way. i think there it was abaon in the court suggests some sort of age verification or somet like that will be a better way to dot too. >> rosenberg on the speaker program exactly same thing with adult theaters so and so forth. >> if we were to vacate the fi circuit as you have suggestere's some question and discussion a what the world looks then.

with the limiter injunction of the district court room bac into effect this law that's already taken effect will now no longer be enforceable? >> will be a question for the circuit that this court tes and sends it back to the fifth circuit when the court ndates issues the appeal would bring back to life in tifth circuit and go back t the state of the world before the fifth circuit opinion of the state of the world was fifth circuit had gnted a stay of up limiter injunction ending in appeal it wouldpen to the fifth circuit with the benefit of whatever guidance is court provi in its opinion to decide in the first instance whether to rein that same state pending its further consideration for graco to do that if told they'd done the wrong standard? i suppose it ho go back to the right standard. in the interim what happe >> some period of time and think ays before theou mandate issues of our texas i would g to the fifth circuit in the meantime and asked to reinstate the stay. i thi the circuit should look at itith the benefit of this guidance and note as a party circuit stayed up limiterth

inon tennessee is very similar law in the city state assumption of strict scrutiny applied. >> mr. fletcher i say or share me of justice thomas' discomfoh watering down strict scrutiny. nk it's common ground even with petitioner's the state has a compelling interest in i think petitioner's we back your challenging even a different law but they've lt open the door to the possibility. i think there is a sense here theta should be able to protect minors. there's not a whole lot of room in the way we traditionally understaict scrutiny for that to happen.

we have this series of precedents. can we find room for the intuition withinarameter of the decision set? this is the case where the state has a compelling interest in restricting speecd on its content. that is exceedinglyal. that isecause of the unique nature of the interest here. i think we give states the room they need in this context but contexts.atering down the other >> thank you, counsel. in terthe precedents you are talking about, there are where the technological lopments because the court

to reconsider the precedents developed from the horse and buggy days, prior to significant changes. y that not a pertinent factor to consider here? >> i think it might be pertinent but the court has also sre recently including last term that the principles of the first amendment do not change with the technology and has to maintain the fundamental first amendment principles and apply em to new technology. all the technological devet's which are incredibly relevant to the question sit more naturally in decidingcrutiny applies and why states are able to sasfy scrutiny than it does to revisiting the fundamental standard reports the principles of the first amendmenot change with technology but the application of technology to the first amendment technology can alter what

affecting the principles. u apply speech protections face to faht be different in situations where you are lking 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 of the things that is striking about the case is the dr change in technology of brick-and-mortar stores to the access to pornography which also seems to be dramati different from t was 40-whatever years ago. >> there has been a lot of change butsounds a lot like the argument where they said the content on social media platforms was totally different from the editorial paghe miami herald. that calls for a different standard o scrutiny.

this court saiill keep the same standar but acknowledge the application might be ent because of the differt cts. i think the way to be consistent woulbeo stick with the same standard. that does not persuade you, i think it might be a reason to revisit the standard of scrutiny if you rea conclusions scrutiny does not give states the freedom to solve this problem. we think there is reason to believe it does leave them that freedom. i think that is another reason not to revisit the presentence. >> you would admit we are in an entirely different world. >> i would not disagree wi that. the world was a world of dial-up internet ashcroft. >> now, every child has a smartphone in their pocket with high-speed access.

>> did not change in technology affect our opinion from reversal from quill to wayfair? >> i do not know. that was n a first amendment >> i understand that. >> i dmean to suggest technology is never a rea when the court is ring a president. we think texas hasot fairly squared up request before the court takes theeparate the fifth circuit thought it was compin if you were to loo at ashcroft based on a party making a pitch to overrule, tecical change might be relevant. >> as well as the fact you thought your argument in some of the earlier cases, like reno,

you suggested a lower standard play a role here.hought it would >> we did but this court disa >> you threw in the towel. [laughter] >> three times. >> you should not feended by that. [laughter] >> jusce alito. >> do not want to belabor ginsburg too much but it is a precedent of the court. you do not want us to overrule it? >> not at all. >> yn have to explain why controlling here.portant if not what i have heard from you, correct me if i ng, is rg did not consider the burden on e seller for adults who wanted to purchase the

magazines gre ds that how you would distinguish it? >> i with the second part. i think it was a conviction of the seller but the argument he was making was children have the same first amendmehts as adults in the way the court framed the argument was the law not invade the area of freedom of expression to min >> i do not think that is the argument that was made. mr. ginsburg wresented by sophisticated attorneys. heres mething they said in their brief. the policing problem would become an impossible burden leading the bookseller to andon sales even to adults, thus the adults would be deprived of such literature because not available for distribution to adolescents. the argument was before the court. the court ably was aware of it, took account of it, and said the proper standard of

rebuke is a rational b >> i do not see that in the opinion. we usually read the court precedents and what the court decides. other i will say is the court did confront arguments of the rights of adults burdened in trying to protect adolescents and reached a different nclusion. the last thing i will say is we have argued for intermedia scrutiny before. i think there was forced to that. rational basis review argument is banning the speech entirely would be a ratiol sis of keeping it away from children even ageication requiring you register with the state to

keep records of who is viewing what might be aational way of keeping it from children but those are hard to defend and i think that is another reason why we shied away from arguing >> i want to go bayourl basis. assertion that if we thought the fifth circuit applied the wrong standard of review we woulde required to cause the preliminary injunction issued by the district court to spring nto effect. the questi before us is whether we sul reverse a decision that stays that preliminary injunction. would we not have the power to reverse the decision in so far

as it said rational basis was the proper standard fothport to use but leave it in place because thoug hypothetically this law would satisfy even strict scrutiny. wit beyond would that be beyond our power? >> what is before you is the fifth circuit's final decision rsing. if you vacate that decision, i think normally it woul return the appeal to the fifth circuit e ball would be in the fifth circuit's court >> it would return the case to the fifth circuit on the terms we thoere appropriate and returning tthe fifth circuit. >> i do not suggest the court lacks the power if it wanted to grant some stay itself. i'm sure there is a way for the court to do that if trt wanted to provide guidance in the opinion, i'm sure the fifth circuit would follow that guidance deciding what the us quo ought to be while the tition continues. >> just so i have themre in

mind, you mentioned c matters you thought would b important to clarify under state in making a judgment about whether the lawatisfies strict scrutiny. could you pick those off again fo >> there are three. one is the 1/3 requirement. the seuestion is the permitted methods of age verifica and whether the biommethods comply with xas law. the third is the question about en texas law refers to obscene as to minors, which minors are we talking about? the youngest or all minors? >> justice sotomayor. >> i am not sunderstand your first points. could you go through that again?

>> one ofoints the petitioners make is the texas law requires age gating of a website if more than ord of the material on the website is sexterial harmful to minors. petitioners sa means we need to age gate a website even if up ttwthirds of the material is constitutionally protected to minors. that means the statute is not narrowly tailored and restricts i understand my friends from texas to say texas does not necessarily mean that and site the best website might be able to comply by age gating only some material. i think the website isier to defend if you accept construction along those lines. >> with respect to the permitted methods of i.d., the counsel fo

petitioner says the more secure methods, the morsere methods are probited. do you think that is ambiguous? >> i do know the answer to that end i defer to the parties on that. the texas law seems to say you need to have a commercially reasonable method at relies on public or private transactional ink the question would be whether something that relies on biometric, face recognition, voice recognition, satisfies the ement. >> so to the extent whatever methe to be permitted texasaw, if they have greater risk to the user, that would be part of t calculus? >> i think concernthe e or part of the calculus, yes.

>> thank you. >> jus kagan. >> i want to talk toou about life on a blank slate. pretend the precedents do not exr a moment. i want to come back and ask you about the precedents, but pretend theyt. make it really blank. it does not seem you are required to say we first argued it in a non-strict scrutinyay because obviously you were defending federaltates. that was the most natural way to defend them. i want to take out theac your first arme was the not strict scrutiny argument and say, as you are standing here on a blank slate, it seems to there are possible spillover dangers either way. one is the spillover danger of you relax sicscrutiny in one place and l a sudden strict scrutiny gets relaxed in other ples. the other is the spillov danger of you treat a clearly

coenbased law is not requiring strict scrutiny and more conased restrictions seeing that do not have to satisfy strict scrutiny. i want to ask you how you weigh those dangers. i read usa and has just got to be the case that states can do some regulat i read you a saying this has just got to be the case that states can do some regulation in this area. w does that happen? es it happen by notching down strict scrutiny or by saying this set of restrictions comes e it? >> you read me correctly. i genuinely think there would have been two reasonable ways to go at the problem. it is a unique feature in the first amendment where ve the same speech protected as to some people and not to others. everyone agrees everyone has a compelling interesin

restricting access to that speech based on its content. it is a special, unique problem. one way aroach it would have been to say something less than strict scrutiny even though it is content based. her approach, the one i am ting, is to say strict scrutiny applies differently. i think it would need to say regular strict scrutiny standard apdifferently because of special features here. as a matter of principles, i'm not tro duck the quesoni'm genuinely saying i been equally workable.would have but we are not writing on blank slate. i think this is what ts e scales. >> the next question was going to ask is, what about ashcrof and all of our other decisions you think ty e simply not distinguishable in the way that one might want to distinguish them? >> i think ashcroft is particularly hard because that was a law that looked in terms almost exactly like the law at issue here. ke justice barrett's point

that age verification s affirmative defense. it was basically exactly the same. gic of the court's opinion in the earlier line was defining seal material harmful to children. this category of matia kids can be prohibited from seeing was a content-based restriction. this get to complete my answer to yrlier question abo why i am more worried about the second categorlover. that starts to bring in not just this particular corner of th first amendment law but also the court's cases from all the other places where the court has laid down this is what it to have a content-based law i worry if you start now trying to cark on ashcroft and the other cases you would have spillover into those broader areas of amendment law when recognizing strict scrutiny functions differently here and

is limited to this corner of the law. >> thank you. >> justice gorsuch. >> i want to follow up on ashcroft just a little bit. you seem to thinkhat is the major impediment. >> the most direct one, sure. >> that was a p.i. where the government did not contest the level of scrin does that help? >>nk it was a p.i. i think the court was self-consciously tentative in sots of its analysis, especially the application of strict scrutiny. i do not think the court was tentative about what the relevant level of scrutiny was. i read it to say we have a content serestriction of speech sct scrutiny applie >> also incomplete factual record which it repeatedly emphas >> completely agree. all the more reason why courts have gone overboard is treating

strict scrutiny as controlling. even 20 years later, i would put the standard in a different category. >> what do think about justice o'connor's concurrn reno? >> i think there is a lot of force in her ideas. i take her ideas to be a lot like justice kagan' and ther ought to be a way to translate that idea into thworld of the internet. we very much agree with that. we have not advocated for the same stashe advocated for their because we view the court's precedents as requiring a higher standard. as far as the thrust of her logic and concerns about wh states ought to be able to do, we agreed. you agree with the principal ther compelling government intere there must be some white ith world to effectuate that? >> i think there is a lot of force. i hesitate to say that is always true in every circumstance in this area, yes. >> justice kavanaugh.

>> to follow uustice gorsuch and justice alito's questions about if we va the state of p there was a stay before the decision. so, is a p.i. in effect or not in effect after our mandate >> i would think absent further action, i do no want to speak foparties if there is something i amsing, but i would think absent further action from the fifth circuit, if this court vacates the fifth circuit decision remands, the result would be the preliminary injunction would come back into effect. if i were ing the law, renew my previously grantedld motion for a stay pending appeal and i would make arguments about why pending the fifth circuit's further coidation. >> do you think a stay should be issued? >> we have not taken a position because it is bound up with uncertain questions about what

ths law is. >> the court have to make a likd of success determination. u have been looking at this a long time. you do not have a likelihood of success assessme >> we do not. >> ok. on ash2.0, how do you think we should handle spifically the application of e strict scrutiny standard? ? should we just say overtaken by events, no longer valid? tell us w u think we should phrase that. >> youoned star decisive -- s desisis. i read it as self-conly very tentative. before emphasis was on the p.i. the last couple of pages of the opinion, the cs saying nothing we are saying keeps them

from concluding the strict i think the court can say given at, nothing in the opinion forecloses the courts from deciding 20 years later with the benefit of experience that strict scrutiny is satisfied. >> one question on how you would apply strict scrutiny, it seems to be one of the tricky parts cause everyone agrees compelling interest. you say in your brief "appropriate tailo which i think is a good phrase. one thing that concerns me is people say there is a less strict of ative. it important to say any less restrictive alternative has to serve the compelling or importantnterests to the same degree. am i right in saying that? >> i think you are right. i agree that is important. >> as are the sort of th the

fifth circuit y on remand and would, right? they would go through the record and try to assess whether the district court got it right with respect to other alternatives and that sort ofhing? >> yes. >> that is why the government is sayi why don't you remand it insteas taking that on? >> indifference court's usual practice -- in deference to the court's usu practice, we think tre reasons for the not to wade into it now, exactly. >>ith respect to the technolostion earlier, i'm trying to figure out way it cuts that we have now advanced in technology i can see that cs both ways. on one hand, we have a new set of ctances that allow for minors to get this material ly and it is ubiquitous but ink the district argument is the technology heightens the risks and burdens on adults trying to access this material

if they have to do a biometric stand or certain things that are imping privacy in a way technology n allows. it is not clear to me just the fact that we have new technology is running in favor of allowing this law to stand as is. >> i agree with that, that technology does not necessarily you want to ask both of those questions. what i would say about tegy and theurden of two observations, the factual observation is i think the world now includes more options to verify your identity than in hcroft that are more broadly used. one of thes that gives us more confidence is this is being used in the gambling iustry in buying alcohol. it is a much more common part of society. that can give courtsor confidence saying this is an appropriate method of a verification. the second one is a legal p

i think there is some tendency on the petitn's side and district court to say the relevant burden is, will people be chilled from doing this? i think burdens on privacy a portant the court should ask those questions objectively, not suggestively -- subjectively. there might be people embarrassed to show i.d. to take a magazine off iraq. the question is whether the burden is objectively excessive ecessary. >> i noticed your brief did not anything about whether the facial nature of the challenge affect society. i presume in th about it that is because the distinction between facial and as applied is not have any bearing on the question of the leve of scrutiny. t right? >> exactly right. before deciding whether the law

is invyou have to decide the relevant standards. that is the question we take to be squarely presented to this court now and that is why we focused on that and not have the answer of that might cash out. >> think it. -- you >> thank you, counsel. mr. nielsen? >> mr. chief justice, and may it ease the court, petitioners do not dispute the websites are not meant for children, that they harm children, and that children are watching. the court faced the same tuion with brick-and-mortar stores and apply rational basis to a law limiting adult content to adults. this case is the d version of ginsburg. three casee the point. ginsburg itself applies rational where a store can only

oiiability by making "a reasonable, bona fide attempt to ascertain the true age of customers." sable applies rational basis for speake to separate the audience before sg a message to some but notll. in ashcroft 2.0, the court did not apply rational basisecse congress limited by 1990's technology went well beyond ginsburg and sable. to understand ashcroft 2.0, you and look how the court treated sable. age verification today is simple, safe, and common, including nonidentifying means. petitioners' view of texas law is contrar texas'ieof texas law and the fifth c's view of texas law. regardless, if strict scruti applies here, texas would have

to satisfy strict scrutiny to keep kids out of strip clubs. this court's cases to not require that, itr do history, con, or common sense. and all of the events, even if heightened scrutiny applies, texas easily satisfies it, esly facially. we have tried content filtering for decades. the problem has only gotten worse. i welcomcourt's questions. >> the ginsburg sounds simple. but in theech cases we have had recently, we are talking about hundredsf millions of members to certain sites. billions of visits. multi-billions if not trillions of exchanges. how do we determine what burden, ming we agree with you, and i think most people do, that kids are to be protected, ho

much of a burden is permissible on adults' first amendment gh? >> so long as ginsburg is part of this court'sanon, any burden less than the burden at issue in ginsburg necessarily >> how does that translate in a world in which you are not talking about one-on-one tranns but billions of transactions? >>t cuts in favor of texas. one of the important parts of age verification without identification at all.it the fifth rct was clear that under texas law, bmeic scanning is ok. in other wds, there is no i.d. or anything like that. it is just a face scan. if that is too much, i would port the court to e brief of the age verification providers association. there all sorts things you do that no identifyininrmation. >> you areng about rational basis.

you ulthink rational basis would permit quite a high burden on the first amendnt rights of adults versus strict scrutin >> this is where i think it is important to understand th scope of ginsburg. ashcro 2 is president. we are not fighting that -- ashcroft 2.0 isredent -- prr ecedent. as long as you are verifying this is a kid, that is rational basis. world of ashcroft 2.0.n the >> what if verifying took the form of law that the state says what we would like to h is everyone who comes in here needs to present aof their passport, a copy of their birth certificate, and an affidavit from their biological p is that also rational basi terms of the burden that it imposes on adults? >> why not?onor.

>> because that is far in exce of what the court recognized in ginsburg. >> butheourt in ginsburg was not ing the means by which age verification wasurring. my hypothetical is turning on if the court is allowing for age verification, how far can a state go in terms of burdening adults shoow old they are? and it seems to me that you're nceding that at some point a state would not be abl a million hoops to prove theirgh age. and if that's the case, isn't that the w strict scrutiny? i mean, i thought that what strict scrutiny was doing was assurit the burden that's being imposed is one that is necessary. because we understand that adould ordinarily have access to this material, we in protecting children, butrest we're not goingt the state

impose a thousings that would make it really, really hard for adults when there are other alternatives to protect ch. i thought that was the whole point of the strict scrutiny anysis. mr. nielson: so there are two precedents that tht has to give weight to both of them. there is ginsburand there's ashcroft ii. justice jackson: i understand, but you're reading ginsburg to suggest that the court has blessed every kind of age verification that a state could require of an adult. say, is focused on minors andu states "protectiors" and the fact that the burden falls on adults to prove their age is really not a big deal, i'm just testing your contention that a state looking at ginsburg co do something very, very burdensome in order to protect minors mr. nielson: yeat i'm trying to say is i'm not suggesting that you could do anything this.

and i know that because of ashcroft there are two cases, both of which are precedents of this court, both of which have meaning. justice jackson: but wouldn' rational basis allow you to do hing? i mean the state would say, "it's rational that we have a can lie about their age and what we want is to make sure that minors are protected." mr. nielson: and ashcroft ii says, at some point, you've gon beyond ginsburg. ginsburg, we know -- unless we're writing ginsburg out of the law, if it's rden is no greater than showing an id in ginsburg, that's not strict scrutiny. justice kagan: well, i think whatheuestion really was is, what is that point? what is the point at which you osover the ginsburg/ashcroft line in your view? nielson: yeah, so this is where i think you can't understand ashcroft ii who understanding ashcroft i. and in ashcroft i, the fight between the pluraly d the rest of the court was, hey, does sable mean tt applies whatever the technology is? in other wor, atever the burden, if you can't do it, who

cares? or does sable mean that it has to be technologically and reasonably possible? the court disagreed about that. i don't know where the awe extension of sable. is on that i do know that ginsburg is a holding of thicot that says, "so long as the burden is showing an id, that doesn't trigger strict scrutiny." we are less than that. so i don't know the exact lin juickagan: can i ask you general -- and this is, i' shifting ground some, but you've now heard mr. fletcher's three about your law.ee ques i think you heard thce, so you probably -- mr. nielson: i wrom down. justice kagan: ok. how does texas's lawfare give those three concerns? are those genuine concerns? ou pass them or fail them? mr. nielson: yeah, they ar first, the one-third i have two points on that. that's how states generally define sexually-ieed businesses. illinois ss u're an adult

bookstorat5% of your content. that's how san francisco defines whetr u're an adult bookstore. so that's point one, just generally. t specific to this statute, i urge the court to look at the ngge. one-third requirement applies to whether they have to satfy whether the law kicks in, but it's not referring to the content at issue. i'm looking at the language here in secon29b.002. the keywords are "the material." is that referring back to all thmaterial on the website or sexually harmful material to minors? no texas court has had a opportunity to look at this. this is a facial prenfcement challenge, but our reading of that is it's going to be limited to the sexually harmful material. justice kaga number two. mr. nielson: number two is the permitted methods, biometric. we have a g from the fifth circuit on this. s at petition appendix 11a. biometric scanning is fine under

fifth circuit law, and u texas law we agree with that. that's in o bef, that is the position of the attorney general's office. and number three is, "obscene as to minors." again, two points. this was the fight, or one of the gh, at issue in ashcroft i. the court said we followed the sameanage and the court said that was fine in ashcroft i. but our reading, again, in s, i'll tell you, texas they follow the text of thelly. statutes. i am looking at our definition of sexually teal harmful to minors. that's section section 129b.001. the irpart is we define rs as those under 18. taken as a whole lacks serus terary, artistic, political, or scientific value for minors. in other words, that includes up to people who ar so their idea that -- justice kagan: so if i understand you correctly as to those three, as to number tw and number three, you say, "well, even if that's a legit concern, our law is ok with

respect to it." . nielson: yes, your honor. justice kagan: i don't think that that's quite your answer is that right, or is that wrong? mr. nielson: no, i think we're fih number one. my point is thn if i'm wrong about how texas law works, we're still ok because then we're like illinois and san francisc but i don't think i'm wrong about how texas law works. justice kagan: i see. mr. nielson: if you take the content and you put it behind an age scwe're not counting that. justice kavanaugh: your -- justice alito: so if you -- keep going? justice kavanaugh: no, i apologize. justice alito: just to clarify with respect to point one, so if a paicar website has some hardcore pornography that is obscene as to minors, and then has videos of somebody reading lady chatterley's lover or something like that, can the latter be segregated? mr. nielson: so i have to argue with one hand behind my back

because no texas court has an opportto look at any of this. i'm just gyou my reading of the statute and based on what i know about texas courts, and the answer would be, yes, it could be segregated. justice sotomayor: but no court has said tt t. mr. nielson: correct. and that's pa othe problem. i know the court has had some unhappiness wi tse facial pre-enforcement challenges. this should be exhibit one in the case against them. justice sotomayor: this law doesn't protect someone, or says you can't this information. the other side in its brief argues that that doesn't mean you can't sell give it away. mr. nielson: yeah, some respon that. one, i don'know if that's even technologically possible. i don't know how you send the information without having at least instantaneously retained it that doesn't make any sen me. also -- justice sotomayor: well, have to receive it to make a choice. someone is receiving it to make a choice, and presumably the law

says after 've made the choice is this an adult or a child, you've got -- after you've made the choice, is t an adult or a child, you've got to delete it. mr. nielson: correct. justice sotomayor: b ithat interim, when i receive the information,e i make the choice, i could just give it away to another 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 otople. mr. nielson: so let's say that i'm wrong about that. ain, i don't know the technology -- justice sotomayor: well, that's the point, because i don't know. mr. nielsoon't know how you do it. why it's important.so this is justice sotomayor: that's once yoget to a trial, and somebody figures this out. mr. nielson: im saying that under the fifth circuit's view of the law, which this court did not grant cereview, biometric scanning is ok. so theres no identifying information to even turn over. so it wouldn't make sense. even if you transferred it, you're not transferring identifying information. aneven if you did have identifying information, no

does it. again, i point to the brief, to the age verion association -- justice sotomayor: we' talking in a vacuum because i don't know the record. i do understand that biometrics sort of looks at a face. mr. fletcher said it looks at a hand, or somaid it looks at a hand. i have nid how it works. but i do know that dna evidence can be picked up from the paper i just touched, and i don'know if biometric information can be used to create other things. i don't know any of this. none of us do. so the questioefore any judge can ine whether this law and the extent of its burden or lack thereof, someone has to determine that, doesn' 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 stoint about all of that is, of course, the petitioners get to cwho the age verification provider is. so if the't like the age verification provider's policies about well they can stop

that too. it's within their power. they have self-help meas earlier when you were discussing ginsburg, you said gg applies to aification requiremend thus, age verification requirements get rational basis review, and that's how you distinguish. they're too burdensome," which doesn't sound anymore like rational basis rie but i'm actually not interested in whether w it intermediate scrutiny or strict scrutiny or rational basis. for rpes of this question, is the statement of principle, first amendment principle that you're seeking at a broad level, age verification requireme are permissible so long is ey're not overly burdensome on adult access? mr. nielson: yes. yes, your honor. and that's how i understand -- justice kavanaugh: and those are the exact adved adjectives, "overly burdensome,"

oro you have a preferred statement? mr. nielsouess i would say so long as it's incidental to verifying age. again, i don't know what overly burdensome means. justice kavanaugh: that's a ttle different. exactly. ok. and th have to look at how much burden is there on the adult accessh i think you've conceded. conceded ithwrong word, but just acknowledged that that is going to necessarily be part o e inquiry because you've said a few times if it's mo tn the ginsburg burden, at some point, it may cross into too much. mr. nielson: correct, your honor, because wtrying to reconcile ashcroft ii and ginsburg and again --naugh: and you've -- mr. nielson: i don't think i concededbu-- justice kavanaugh: yeah, i'm using the word conceded in that way. you ledge that a law, for example, that mr. fletcher ided, that just banned all pornography, on the idea that that would serve the interest in ting children from accessing it, that's rmissible. mr. nielson: correct. that's the seco pt of sable. justice kavanaugh: right. and then also to justice jackson, if the requirements for age verification were so onerous

and unnecessary that they rdened, really prevented many adults from accessing constitutionally-protected speech as to adults, you also acknowledge that be impermissible. mr. nielson: yes, your honor, because again, that's how we read ashcroft ii. justice jackson: but, mr. nielson -- justice barrett: mr. nielson, y are you saying that it's like a carve-out of content mination? because you heard my interchange with mr. fletcher and also wit your friend on the other side i was trying to see if there was a way of just exploring how do we think about ashcroft ii. and there is some content discrimination herht? because you do have to look at the content ide whether the age verification requirement applies. so i take your answer to justice kavanaugh when you say, "no, n no, no, no. it wouldn't be what mr. fletcher said." that if al basis review applied, they could ban the whole category because that would be a rationaof protecting children. you say that's not the case because we look at ginsburg, and it'st age verification. mr. nielson: yes, your honor.

justice barrett: so is this like an age verification carve-out, like its content discrimination doesn't trigger strict scrutiny if we're talking about age verification? is that the argument? mr. nielson: i guess there's two conceptual ways tondstand it. i'm nosu what ginsburg, which one they did. one is if it's just gatekeeping, as long as you're allowedo have two different groups, you ve to have some way to tell the difference between the two. and if it's ncidental, the gatekeeping, that doesn't itself trigger strict scrutiny. that'ontheory of ginsburg. the other theory of ginsburg is that just okg at identification just isn't a constitutionally cognizable burden. that would fit in with the crawford line of cases for ng. that would fit with the american library association, where they say going to the librarian, that's embarrassing. that's just n a constitutionally cognizable . justice sotomayor: but if -- justice kavanaugh: but you sai -- justice sotomayor: i understand you tly, you are saying, and this goes back to justice jackson's hypothetical, that

wh t burden gets too great, when they're asking you to do all these unreasonable things, that's the point at wchif i understand you correctly, tell me if i don't, it flips into not rational basis rie but into a heightened review, strict scrutiny. mr. nielson: correct, your honor. that'how we read ashcroft ii. justice sotomayor: ok. so that is a little bit peculiar, isn't it? i mean, it's obviously the case that the extent of the burden should matter a lot in the constitutional analysis, but it usually matters when you're applying whater andard you're applying. it doesn't usually push you like, "oh, ts rden, it's very hard mt this age verification requirement." so bau that's true, it pushes you into a different anrd of scrutiny. i don't know if i can think of mr. nielson: yeah, i agree.. that is a curious efctf reconciling ginsburg and ashcroft ii. justice kavanaugh: but it's just

inherent in having an age. one category that can't access and another category of people th, and you have to have some mechanism, as you just said, for determining it. t i think in reply to justice jackson and justice kagan, you've said, "yes,uld get too burdensome." in other words, ev verification, i think justice kagan was just sinthis, even age verification could get too burdensome if you did things like passpt something like that. mr. nielson: correct, your honor. again, there's -- justice kavanaugh: again, whether you call it whatever you call it. justice jackson: but i think what you call it is important. justice kavanaugh: well, i'm just going twhatever you call, it can't get to burdensome, right? mr. nielson: yeah, so i mean the north star here is so s ginsburg has some meaning, so long as the burden ino greater than the burden at a ginsburg, ra basis applies. justice jackson: but mr. nielhe burden was not the

issue in ginsburg. that's my only problem with have said, is that i took ginsburg to be establishin initial principle that you start th, that it's ok to treat minors differently thats, period. but that's the holding of ginsburg. it wasn't talking about the extent to which figuring that out was going to burden adults and how muchdults' first amendmghts were impinged by operating that principle. ithe first case to establish, in this context, that minors don't have the same rights as adults to achis material. then we go on in other cases, in the caat justice sotomayor raises, to evaluate, "ok, now that we know that we can separate these two categor people," you're absolutely right that we have to have sy of doing that. but these other cases are abt how burdensome the way of doing that is, and to what extent. and you seem to be ag that there's a point at which the burden that you'mposing on adults are going to be too much.

and my only point about the standard mattering is that i thought the work of rational basis review and strict scrutiny was to evaluate whether this is o burdensome, that we say, because the adults have a certain scope of first amendment rights, you can only impose a burden that is the restrictive way of reaching your compelling interests. so, we dont need a new set of principles or tests. we have a test. the test is strict scrutiny and the government says, mr. fletcher, says there might be a way in which this actually satisfies that. mr. nielson: so that test can't be right. and the reason why it can't be ri it would mean that if a state wants to stop kids from going into a strip club, they have to satisfy stcrutiny. justice jackson: no, because kids going into a strip club poses no burden on adults. that was going to be my other question for you.

why would saying a ki't go into the strip club pose any burden on an adult wted to? mr. nielson: said, "you need to look at id's, if you have sy, you can't tell they're an adult or not to go intoip club." justice jackson: so we apply strict scrutiny. mr. nielson: you would apply rict scrutiny to that. justice jackson: and then we say, "is te least restrictive means?" and you say, "yes, fine. you can do it." mr. nielson: that is not at all consistent with our tradition and history. as i understand strict scrutiny, again, i know there's different views on this. as i understand strict scrutiny, the idea is this is generally not ok, but sometimes we'll m anxction if there's really extraordinary reasons for it. but in our history, we have always said kids can't come and look at this stuff. so it seems not corrt me as a historical matter to say, "well, actually, it's always been presumptively unconstitutional. but on this one thing, we've done it forever, strictiny somehow has always been

satisfied." justice barrett: mr. nielson, i want to take ythe questions that justice kas dangers.r. fletcher about the i just want you to posit this, this is all justnd. let's imagine that you should win, that texas should win. and justice kagan asked if that were so, if there is a way that states shoulbeble to regulate, and the federal governshould be able to regulate this, we have to decide hofirst amendment precedent might accommodate at. and justice kagan identifi mr. fletcher two options. kind of regulation can satisfy strict scrutiny. and the other might be to say in this context, intermediate scrutiny makes more see. i just want to take rational basis off ble. mr. nielson: yeah. justice barrett: 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, so i am very worried not about this law. i think we're goi tpass i hope that that is where the court is, that this law passes strict scrutiny. i am worried about my strip club example or anyth sexually oriented businesses.

if we stt ying that the stda is strict scrutiny, i hope this court says, "oh, that's ok. it passes strict scrutiny. but there's a whole bunch of law on strict scrutiny and wle bunch of different judges across this country are going to apply it. there's a bunch of cases that say fatal in fact. and we're going to ha aot of pi's and a lot of emergency litigation. th's a problem, a real world -- justice kagan: but that w't be true necessarily, if we wrote the kind of opinion th m fletcher had in mind, right? "this is the kind of strict scrutiny we're talking about. this is what will pass it. take us seriouy. mr. nieln:o that's within the control of this court, for that language to be. i hope if such opinion gets written, it is very, very clear ate shouldn't get these pi's like this. juste ito: general nielson, let me see if this is nstent with what you'reayg. if a law prohibits or regulates a type of speech that is not entitled to any constitutional

protection, the content of the speech does have to be examined at the outset to determine whheit falls within that tegory. and the fact that that preliminary examination is necessary do mean that the law is content-based and therefore is subject to strict scrutiny. mr. elson: yes, your honor. justice alito: so what that may suggest is that while th render the law content-based sot long as it is not cessive, then strict scrutiny is not triggered. but if it crosses a certain point anecomes too burdensome, so that it is more s reasonably necessary to determination about whether the speech is constitutionally protected, then yonto another level of scrutiny. mr. nielson: yes, your honor. and i think that ginsburg is consistent with that view.

justice jackson: what about packingham? justice sotomayor: t pblem is that the speech here is not just about obscene speech, which is not subjecty rational basis scrutiny, only because it's -- i'm not even thinkin ratiasis, because obscene speech is illegal for adults or minors. mr. nielson: it can be made illegal. yes, your honor. justice sotomayor: it can be made illegal, not automatically, but it'not protected speech. obscene speech is not protected. . elson: exactly, your honor. yes. justice sotomayor: pros doesn't make illegal justtect, obscene speech. it makes illegal obscene and indecent speech that might ct children. but adults can view indecent speech, correct? mr. nielson: yes, your honor, but children are there. justice sotomayor: no. let's not quibble, not when ch are there. but you now have to look further

something's obscene.ther you have to figure out whether it's indecenthildren. correct? mr. nielson:your honor. i think so. justicmayor: yeah. so it's not merely checking to seomething doesn't have e words or some fighting words or something like that. u're actually asking adults to not look at something until they do something else, something that'gal 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, you keep saying ginsbu i look at the court's deci was found criminally liable for selling, i thinks to a 16-year-old. the age doesn't matter right now, but aunrage child. and his attack, and this is the court saying, "it's not that new

york was without power to draw the line at age 17. rather, his contention is the broad propositat the scope of the constitutional freedom of expression secured to a citi to read or seed material concwith sex, cannot be made to depend upon whether the tizen is an adult or minor." and the court, he insists, "that the denial to mirsnder 17 of access to materials condemned by the law, insofar as that mateals not obscene for persons of age of 17 or older, constitutes an unconstitutional depration of protected liberty." so it wasn't the age verification that was at issue in ginat all. the court had no reason to addr. the claim there, and what the court was speaking to as involving rational basis, was whether obscene indecent materials had to be made accessible to kids u7. 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, than describing the law, that talks about the burden of the age verification. mr. nielson: look at the very last paragraph of the opinion. that's when they're discussing whhemr. ginsburg had notice, about his obligations were under the statute. the court was very clear. to be sure, that was framed as a due process type claim. it was very clear that they said, "no, you know." justice sotomayor: it was a due process. mr. niso well, it's very clear. you know what you're supposed do. i would also point to the language from the brieth justice alito already mentioned earlier, "i've not heardf court limiting a case to less than its facts."

and there he raised the argument saying, "if this happe,'m not going to be able to sell it to adults." and the court said essentially rational basis. that's how i read it. justice sotomahank you, counsel. justice alito: thank you. justice thomas? justice thno. justice alito: anything further? justice kaga justice gorsuch: one quick questi oashcroft. it crossed the line in your view because, and i want you to fill in the blank. and one possibility, of course, might be that w there made it illegalst, that is to even create, to disseminate the rmation, with the age verification being only an affirmative defe mr. nielson: yes. that is one on there. there'e points on this. again, ashcroft ii doesn't say wh burden was. justice gorsuch: yep. mr. nielson: you have to r into it. one is that. that is clom the opinion and justice stevens concurrence, that's a big problem. another problem, if you go back the district court, was to do

this, you had to have dabas of credit cards. this is not the law in texas. you can't keep the data. so there are no tases. and the third is, again, to go back to ashcft, because you can't separate communities under 1990's technology, if you send it out to the whole world, that'efctively meant some places, content that's not even seen as to minors would be age screens. d that's a burden that has not existed here. we know for a fact that they can segregate by geography. when texas's law went into effect, pornhub left texas. they're still operating in louisiana with age verification. so w that that's no longer true. justice gorsuch: thank you. justice alito: justice kavanaugh? justice kavanaugh: just to follow up on justice alito's formulation, which i thought was helpful. the rule then, age verification requirements can become too excessive to use his formulation? or i think you and i discussed, or can becomovly burdensome? mr. nielson: yeah, and that's

why i usdental. justice kavanaugh: right. and if so, impermissible. but otherwise they'erally permissible and commonsensical. i think that's the basic ork. mr. nielson: yes, your honor. justice kavanaugh: ok. and then just maybe to piggyback on justice gorsuch, this law is not too excessive rly burdensome because, and fill in the blank. mr. nielt's less than in ginsburg, and we know that because you don't even havto ovide identifying information. so in ginsburg, if thereas marginal case, you couldn't tell if it was a kid or an adult, you had to look at the id. you don't have to do that under texas's law. so however youead ginsburg, we are less than that. justice kavanaugh: thank you. justice alito: justice barrett? e barrett: mr. nielson, 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: yeah, so the view of texas is if this court were to vacate the fifth circuit's decision, then the fifth circuit's ay would go back

into effect because it was only the fifth circuit's decision that took out the stay. that would take a separate r. now, i know that the otherid is going to fight me on that one, so we probably would do what mr. fletcher su and go back to t fth circuit for clarification. i ask,f ything else, that the language is clear to the fifth circuit, that it knows it can re-institute the stay. that gets lost in translation sometimes when youet decision from this court. they're lik ", i guess we can't do that anymore." we don't want to get sum rep'd. we respe t court. if that were to happen, i urge the court to please le fifth circuit know. but our view is that because it was this decision that the court is reviewing that vacated the fifth circuit's stay, the stay would then spring back to life. justice alito: justice jackson? justice jackson: yeah. alito suggests that yourjustice argument is that rl basis review applies to state laws that serve merely to screen certain peopm accessing

online content that they have no constial right to access. or at least it could be thought ofat way. and neither party cited this case in their briefs, but i wonder whether this woul afoul of packingham. i don't know if you're familiar with that case, but it's one in which we looked at convicted sex offenders who were trying to access social media websites, state law precluding that. and we applied heightened raised the same kind of dynamic that you say rationas review would apply to. so i think we have to try to figure out how the standard or the principle that justice alito articulated would be consistent with that case as well. mr. nielson: yeah. i confess, i'verobly thought i read every one of this court's recent first amendntases preparing for today's argument. i did not read pkiham.

i don't know, your honor. but i do know that we are in the exact sameonxt as in ginsburg. so whatee scope of ginsburg, we fall within it. juice jackson: and it turns, in a way, on whether or not agree that ginsburg was speaking the burden or speaking to the making the initial determination that minors can be t differently than adults. mr. nielson: i trust your honor on that one. justice ja yeah. mr. nielson: i would also say the other way that you could thint ginsburg, of course, is that an id requirement is ju a constitutionally cognizable burden at all, which would be consistent with some this court's other cases, and not fall within the packingham -- justice jackson: the 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 fachought they thought it was a content-based restriction, but t gsburg still applied to have a different rule in this tuation.

mr. nielson: all i'm saying is thatou can conceptualize ginsburg in multiple ways. were ok under all of them, but if there are problems that way i would urge the court just to think, "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 ste, and may it please the court. let me start with ginsburg, if i may. we've talked a lot about the fact that that opinion was adng only the rights of minors as invoked there. i would just also note it was not an across-the-board age verification mandate. it was not operating in a context where you hay to screen out minors from specific content. and it didn't say if more than one third of a store is inappropriate fors, minors have to be kept out of the store. this law differs in all of those respects. the question about, let's wipe away for the moment, justice kaga t precedents that this court has laid down for decades abxually indecent speech that's inappropriate for minors via electronic media and via the internet. let's wipe it away moment. stick with strict scrutiny as

the applicable standard of review when we're talking about content-bardens on speakers. this court has an area of law that is clear, that is well understhat is reliable, that will withstand mounting it ind attacks. because we all know when strict sctiny applies, it applies here. and i would urge the court to stick with it even if we forget about the on point precedents for the moment. there e inciples that i think are important, reliable principles tha serve us well going forward. yes, in this context, but also in others. and so that brings me, justice kagan, to yourueion about what about 20 other laws that by some views, may look a lot like texas's. i can tell your honors, is is the worst of the this is the worst of the laws. it has t hlth warnings where texas is telling these targeted spearsnd their users that raphy is, among other things, contributing to prostitution, child ploitation, child pornography.

who's saying to adults, "you should not be here." you have no coation whatsoever oent filtering as the number one alternative that this court had called out. yo age verification that just, respectfully, does not the description that texas's amici are offeri that mr. nielson is collapsing to today, which is age verification different from what the plain terms of the law w permit. and you have none of protections that you would expect from a respe regulator who's concerned about adults' interests here. you don't have enforceable rights for them. you doave privacy protection. you n have confidentiality of information. yodo not have the government saying, "we cannot pry open this information and use it agast you." all of that, your honors, you should await ste or the federal government doing its work, showing its homework, hangomething other than the

ill-tailored law that you have record that tells you nothing about why texas wou've arrived at a law that looks like this unless it was out tohi adults and chill speakers when it comes to exon that is clearly protected as to adults. and i want to offer the ashcroft law, if i may, as a point of comparison. nk that this is the -- your honors. the court was looking at federal legislation on a welloped, comprehensive legislative record where you coulwhat congress was doing and why it s doing it. and it was a serious, genuine effort to regulate justice kavaug as we were discussing, to protect kids from all of the content that wa deemed inappropriate for minors regardlesss source. texas's law is not fit for that purpose, for rso that have gone conceded, i think, effectively by texas and b amici. and you can find in a well-substantiatedetf findings from the district court about how under-inclusive this law is. your honors have room, and i understand sympathy, for a state that is trying to job to regulate in this area conscientisl

and i want to assure you, stice barrett, when we talk about scrutiny that is sicin theory and fatal, in fact, i was lucky enough to learn constitutional lawgerry gunther. that resonates. none of us is suggesting that, in this context, strict scrutiny is fatal. its t. it should not be. 've conceded that there is a compelling interest here. the question will always be, has government tried to arrive at a less restrictive -- has it tried to do this in a way that is not unduly burdeningdus and is truly protecting kids? once this law answers to strict scrutiny, as it has long been understood, i do think, respectfully, this becomes an ase. e last point for mr. fletcher, and i agree with so muchat he says, he talked about tradition as a gst here. and i would just note the tradition th whave on the internet. on the internet.

yes, justice kagan, we've come long way from when we were first tainabout the internet and to explain what it was. but reno and ashcroft have been absolutely fundamenthow the internet has developed as a free miuof expression, as our modern public square. and the tradition on the internet is to say that it will be free and that it is incumbent upon parents to screen out content that is inappropriate for their kids. that's where the law should stay. justice alito: thank you, counsel.