, we will make clarifications and move legislation to make sure of veterans are treated like every other human being in this country because they absolutely have those rights. ask unanimous consent that all members have five legislative days to extend their remarks. without objection, so ordered, adjourned.

burden to constitutionallyrocted speech. >> we will hear argument in case free speech coalition versus paxt mr. schaefer. >> thank you, mr. chief justice. in this case, the fifth circuit the more lacked form applies to a haw that burdens constitutionally protected speech based on content specifically by imposing an age verification barrier before anyone can access a sexually oriented. and a judge explained in his dissent. the strict scrutiny ap to

any content basden on web sites. texas' lmore problematic in its failed predecessors and entire web sites depending on one-third is deemed propriate for minors and has scntic health warnings that despite being enjoined texas' intention to deter alt assuming they clead the age hurdle. to abandon strict scrutiny could open a wave of regulations that imperil free speech. th court could restore the prelimar injunction. the district court found t this law's verification provisions are widely content fteng affords one alternativ is less

restrictive. ashcroft teaches that a preliminary injunction should stand. that result your honor does not denigrate in protecting children nor does it prevent te as to carry its burden between n final judgment. rather,einstating the policemen injunction would remain fidelity for first amendment and rights and prts. i welcome the court's questions. >> c age verification s ever be found conional? >> government should start with -- >> can ageification ever been cstitutional? >> i don't think the court needs to close the door but it needs it to be of the sort that texas is ad vow indicating which is diff >> what would that look like? >> what you have there are ways of verifying age srtf

identifying the individualrt of the transactional data. and so you would have less idention of the individual and privacy protections that are assured by the law. yowould have private rights and enfor. everything depends on the attorney general who is vadl hostile to their web sites a users. you should have confidentiality that is legally assured and the state should be providing assurance that it will not misuse the information that is being collected. none of thoseeares are present in texas' presentation to age verification and n in the legislative record and nothing in the cigses of t court that shows how the specific provisions of this have been tailored with sensitivity to the privacy concerns or being eve casusnd making sure you

have meaningful protections that board.t minors across the if we start with -- council -- counsel, explain to me why the barrier is on-line than a brick a lot of your concerns. that is a feature of the internet. you have privacy if you go into a bookre or a movie theater. you have to show age verification. explain to me why this is uniquely burdensome when it hasn't been in t reeled world ntext. >> the answer is you are creating anent record on the internet when you provide this information. a targetor hackers and something different than physical space and you have >> well, in ashcroft 2, the

court expressedty about the fact that technology moves so fast the five years between that case and the case supreme court that technology may have moved b the record, it's been 20 years since ashcroft, the iphone was introduced in kids can get online porn from gaming systems, tablets, phones, comp content filtering for all those fferent devices is difficult and i think the explosion of addiction to onlinen that content filter igg isn't working. >> content filtering is technologically better than ever and employed by this court and empln workplaces

throughout amend it can work specifically in this context of parents protecting their kids throughll the devices. you can -- >> this court has an i.t. departme >> this is designed to be implemented in the home. ifouook at mr. allen testifying content filtering. it's a question of adoption as to that it is telling that texas has not considered the possibility of encouraging parents. there was a proposal to this law that devices would ininstall content filtering. texas doped without any explanation whatsoever and find that in 25556. texas decided to empower parents and without explanation decided

eyould skip ahead who are more tech savvy thannts their 15-year-old children? >> that's a fair question. kids may be ahead of parents. it's -- >> it's a problem with filtering, isn't it? >> i don't think so. this is to withstand and isticated people. >> come on, bel. there is a huge volume of evidence that filtering doesn't work. we have had many years of experiith it and we have many states who have adopted age verification requirements. you think -- why are they doing good? the filtering is so >> they made no fos encourage content filtering. it.

>> those are not before us. as unconstitutional b it was motivated improper bias the part of the texas legislator that voted almost unanimously for this law. don't think you should go that i far. what i would say they wanted to skip ahead to the more chilling efforts as opposed to content filtering r even considering it. >> the point is content ering mate work to some extent. to the samextent in achieving the government's interest. in the relevant i is not content filtering work. does it achieve the interest of as justice barrett indicated. it's right or wrong at that

moment seems correct today. >> justices kavanaugh, alito, baet i would look at the distriinding that petitioners appdi 1 114 about all the gaps in texas approached to regulate foreign websites are going to be completely underd and changed. vpn minors tech savvy minors can used to make sure they s like they're outside of texas but you have to search engines, he of social media put all those are didly outside the scope of texas law. the only way kids are going to be protected from the sources readilyvailable. argument.s an undusive a state have to tackle everyas aspect of the problem or else they can't do anything. >> all i need to suggest is a genuine effort, a serious effort to regular in this area it would loe the federal laws are honors were considering. ective of source of certain content that's sexually

implicit inappropriate for minors. >> wha y mean genuine and serious? >> anger genuine and t interests. i think their interest is a broader antiporn interest in accessing this content.ts from they want toe it more difficult. they want to make it costlier, want to make it chilling. 's out justice kavanaugh what i would s is crediting the co concerns and the concerns of responsib government that wants to regulate here, you should wait for a government that actually shows they are making serious headway t tackle the problem. >> could i take back to jeste adjusterbarrett initial questio? this is about bcknd-mortar stores. if there's an a vification reirements about pouring magazines, alsoubct to strict scrutiny should that be analyzed the same way? parks i need see the law. i would pay. >> i don't think you need to see the law.

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

traditional sort of law. >> if that's the case and entirely on content blocking the availability ofnt blocking >> do not think entirelyusce kagan. you go to the store the clerk looking at an id, ts on a special cost associated with that. every single user and the internet conte i your multiplying this cost $40000 per 100,000 users is found athe district court as a minimum a serious burden on the speaker. we agreed the integer for justice we have a lock that reads as this law does sayin you are sponsoring sexually it content onl you must answer to across-the-board age verification mandate. that's content -based discrimination print that's a ntent -based burden that should always figure. >> i'm sorry. i want to do a little bit i'm going to try.

do you agree a least in theory, brick-and-mortar institutions should not be treated differently than online and vice versa? we should not have a constitutional regime that prefers technology over another. he said as much in wayfarer. >> justice do agree that principle? >> i think is different medium. i not want to be difficult your honors question. >> i'm going to press y media.rstand there different but, does the principal apply that we should try a treat those two media i equally as possible? >> yes in and await her. >> okal take it part of take it. >> i will stop there. >> a good idea. >> what percentage of clien terial will besidered obscene for minors? eit's tough to arrive at that. >> funds and other sitt all progress that is not true your

honor. >> virtually all? >> no you give me the number. orot quaifd or recognize a very large universe material i would not among that material is blogs, podcasts prec understand i'm asking you for a percefor. >> i cannot quantify that >> piglets more than 50%? what'sthe fair gas progress re than 70%? what's youror i do not want to go out o a limb. i think that may be correct. because more than 90% question. >> tour honor would be stretching upwards. >> are at 70% okay. do you agree is a compelling government of obscene materials and minorsion. quivocally. follow up onefs corkage question. why don't you talk about popular pouring site which i gather you are representing.

one the parties here is the owner of. [inaudible] percentage of auteur on that is not obscene to children? >> he returned with the young minors i would agree most of is. that is how. >> is it like the playboy maga you have essays are modern day. >> not inhat sense but you have sexual wellness about women recovering from hysterectomies how theyould enjoy it sex. that is on there. of age verification proposals and where the industry it lines up as far ashat they think should be legislated what should not. >> what is t second most popular pouring site? >> on your honor i do not kno because you represent these people. >> to represent the industry the portion of the industry that answers u.s. law and jurisdiction. quickly familiar witht they have? somewhat so in the record offer

some indications are that s it is softcore by any accounts people were less rather than more clothing we recognize but not anything anyone would think to be obscene to adults. potentially for 17 at to a pares appropriate for the minor. >> the dtrict court was worried this would have an effect on something like netflix,ight? is netflix a party here kuester question. they are not. is there anything in a business other than hard-core pouring party here concerned about the application of this law? >> yes. what's your honor to have the american booksellers association for you have old schools devoted toex education. >> you have netflix, anything or anybody else like that who concerned with this? soft pouring it's not something

with answer to the description you're suggein earlier. they're actually going to be brought within this. >> could we get to the qn presented? the questiosented is whether or not the law passes is constitutihe question is what level of scrutiny, correct? >> correct. >> the ihat justice gorsuch asked you what type of scrutiny should we apply when content can be obscene to children but not obscene as to adults, correct? rect. >> we have at least five precedents answer that the quesirectly. >> yes. some of the mat was obscene to children. even if it wasn't obscene as t adults. because with respect to children we have said indecent material can be regular into rational, correct? >> yes.

>> and the law applied to adults who said you to apply strict scrutiny for. >> correct it was invalid. >> the answer to justice gorsuch is, let's treat eve medium under the scrutiny that applies to the people affected, correct? yes. that was strict scrutiny for us to buy anything else would be overshooting at least five prts. >> that's my cat as wel let's move from there. okay? assuming all theuestions and i've been asked of you was it because thisedm is different, more ubiquitous, the effect on children might be greater today tha was back when. that would go to weather strict

sc is mets, isn't that true? what's that's exactly right. content filtering is no longer as effective as we t and spot my colleagues that is likely true. that would go to whether this lot meets scrutiny because age verification is more effective right? >> yes. >> h said all of that there has been a suggestion by the other side that instead of scrutiny we should apply teediate scrutiny. assuming we apply a different level of scrutiny. i do not know why the only times that we have applied were dealing with the effects on the rate of speech correct? >> secondary effects, traffic jams, noise, et cetera. e one case that might give me pause is pacifica.

specific i had do with the radio we had aifferent level of scrutiny because of thatut it was not rational basise this court cor >> correct. it was at best intermediate scrutiny. >> yes three. >> why is this different? >> two reasons. number one broadcast is uniquely regulated as a medium of expression if the court is recognized in public broadcasting in particular the rnet is the opposite of that. in that wayhe internet is developed f t second reason the courthasized how much radio permeat t entire cost of the radios on youay just hear something. nonalogue for content filtering you do not have a user through the screen who specifically electing certain content. in w evenhanded across-the-board regulatnf the content deemed appropriate for kids.

yo have under inclusiveness i woulday it is so conus so inexplicable it speaker basis that's another reason in our view why strict scrutiny would apply here than the cas were going too. >> you very much counsel. in that. technological access to pornography has exploded. it's v difficult for 15 yea old or whatever to get access to the type of things that's available with the push of a button today. the nature of the pornography has also changed in those 35 years. are those the sort of developments suggest were visiting the standard of scrutiny is something we should least consider as opposed to keeping a structure was

accepted andstlished an entirely different era? saud specifically asked you not to they did not hold their case mr. chief justice thet to the interest does not change a nd scrutiny. it simply goeso whether the applicable scrutiny is satisfied. we are here conceding explici there's a compelling interest at wo thisre we encourage state efforts are regular in a way that's properly tailored, it is respectful of adults rigs really going to help protect kids. and so that your honor's exactly her strict its work. for the reasons we were discussing it is as well warranted here as in the entire string of cases where your honors have continuously applied strict scriny even if there were new problems, new technologies government is trying to tackle per. >> count thank you. justice alito? >> justiced out mention

they precedents have been c she did not mention ginsburg versus new york which was perhaps the decision the court of appeals relied on most heavily. i would like you explain it right rational basis was appropriate in ginsburg and not appropriate here? whatay in your brief is the law at issue inc. ginsburg did n place any restriction on adults access to sexual it did not for example require sellers to conduct age verion of adult customers. how can that be true? suppose a youngish looking store and wanted to buynsburg's growing magazine. mr. ginsburg face the possibilf criminal prosecution if h did not verify that person was not a minor.

so why ishere not age vetion built into the issue in ginsburg? >> just to submit the in it tailored just as you're you e suggesting with the question. most purchasers it by myself or would the new york law saidk i there is a knowing sale to a minor someone who t seller should suspect to be a minor that's exceptional you might've subjec the seller's discretion some reasonable effort to ascertain the age. >> what you are facing as possible crimina liability you may want to error on the of safety. i know that when i tried to buy wi at a supermarket they require me too show it id. i'm flattered by it. [laughter] about justice i do not think the senior citizen under tew york law would be as likely to be asked to produce verification

of age. it certainly was not an ross-the-board age verification mandate i think. [inaudible] auctioning move on toomhing else. you agree the state has compelling interest you say they ha otherays oferving that interest. i just want you to go through ose. another that you referred to in passing was putting some k of a blocking device on every device you want this built into every smart phone so it's available. >> directed the click of a button requires that list burdensome? workss not burdening it's the conduct accessing extremely sensitive content online right virtue of that twoate separate

transaction they are identifying themselves in a way specific to that content the most sensitive private compromising content. >> your c don't pay. you want to put the cos on apple and google. >> is not a tax on the speaker which h bn a traditional concern of the first amendment. here is a speaker of a particular expression by virtue of that content is subject to the taxpayer. >> what other ways are furthering theerest in the state should have adopted? works two more. blocking at the internet service provider level of the adult who is in charge of the account cut off at the source it does not nto the household unless the adult has authorized the state is to pursue age at the verification the court is to suggest that i open to the notwithstanding the availability of these o, let

themohat in a way that's well considered the age verificio process is no more burdensome than it needs to be. you huarantees about what the age verificatio lks like. if privacy protections for deaf confidentiality. mechanisms that are available to the aggrieved private part each law does not answer to any. there are svis that provide age verification. and they are used for a lot of purposes for online gambling, for purchasing tobacco products. they have very pricy limitations built into them. isn't it open to your clients to >> absolutely it's not. if you look at appendix 171 you can see the provif the law that govern age verification.

it has to be one of three , either digital id which ever agrees is not available in texas. the number one alternative is not there to be use the be thesecond is a government isd exceptionally chilling perhaps the most chilling way to identifyourself to a hostile government. the third is dependent upon commercially reasonable methods that rely upon transactional data. that's things like your mortgage >> you could not use jody for example? >> know we cannot use that we do not think so. by all indicatio ruled out. they do not pretend to mary up there proposed forms of age verification with what texas has described an is a form of verification. hat something that's been addressed by the texas ag where that using a service like that would satisfy therements of the statute question. >> the tax else's texas didot suggest narrowing construction

that was enforcement challenge with the luminary injunction there's just not opportunity their child narrowing construction. that is the real thing despite all their assurances in support of us. part i fight age verification has inherent toys. just said.e knows we are honored >> justice? >> ginsburg. t 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 b adults showed it, correct? >> correct. >> the only rule there is what level of scrutiny applied to a law that applies only to children, correct?

what the court said is what is indecent for an adult coue obscene basically for child seen materials only have to satisfy rational basis >> that is right note justice from brennan's opinion it was exceptionally clear about what you are justoing, what was and was not being addressed. >> in terms of ginsburg being a prt is not a precedent involving a burden on adultery. >> our challenges so it on half of adults were not invokingights of minors. >> sable was a case there a burden on children in the burden on adults the court applied a rational basis to the burden on children explicitly a pride ri scrutiny to the burden on adults correct? >> yes. we h directed precedent that dit said you applied different scrutiny to each category.

>> that is right i would know in reno justice o'connor separate opinion differentiate between the rights of minors versus the rights of adults which are paraly addressed in that opinion two. >> justice kagan? justice gorsuch? >> i thought ginsburg was a conviction of an adult who sold to minors it was not that minor seing any rights. he was charged and convicted of crimes knowingly just selo minors, right? works forgive meor agree with both you and justice sotomayor ogssively one of us can be right. >> here is how i square this. child by the seller invoking the rights o minors. that's where his focus. his right to sell to minors. he was convicted of a crime knowingly sellinginors. as your honor knows in the context of the or breath the availability of the overbread challenge can invoke the rights

of others and that's exactly what i understood for justice brennan the challengers there invoking the right. kay. okay. do you agree he was challen criminal conviction knowingly sell question works i'm not gog to disagree with the procedures the substance. quit your distinction of ginsburg as they a did not have to check every id is that your distinction question correctlity from it knowing sale per. >> you think a that would require brick and mortar stores to check all ids wou b rmissible quite. >> of the gibby'subct to strict scrutiny potential adult shows the burdens we show here you would it's a problem for my arguments would not be anywhere ars strong i do not envision any such account i do not know of any such challenge being brought i'm not suggesting the court should rights opiere in a way that invites us challenges. cost of the respect to age verification online which you treat is a different kettle of

fish. gambling, age id is required by state is not involving protected expression i'm not bringing the first moment charge. >> a point to get a gun,d amendment got into that onlin question of a different standd were not concerned with children the same way we d have all the precedents that call for strict scrutiny when you burdens on adults. quote vote and some say cap to show government id cards were t suggesting that's an issue brick all thohe but this is different? your honor is different. partners because the internet is because rich on burden.f it >> okay we do have an amicus from the age verification provider saint this can be done now online. anticipating and talking about justice o'connor's very thoughuloncurrence of ren sickness technologies going to change. they say it hasndd changed we do not have much of a record

given this is not a pi but when we do about that question is ent upon the texas legislature to m record show wrestling with this reservation. >> proxima incumbent upon the challenger to the law especially in a f challenge to make theord question works under strict scrutiny texas bears the burden it a content you have the instruction can be dan ashcroft and noear as consideration by the texas gislature about content filtering. that gives likelihood of ccess out of the gate. as found the district short we showed as implement by h 1 will be invadingrivacy part one last point, this is that one trigger. by your honor is more targeted law. a more tailored law thatays here's a particular concern we are regulating according to that hat you do but hertatement ose who bring facial

challenges have especially hard roll,oad, but row to hoe. >> to think we've done what moody's would require any challenger to do we have shown the heartland applica are unconstitutional. when it comes to a lack tailoring as youxpd on these particular challenges the analysis only gets worse for texas but we do not read moody's to transform part of fir amendment so you can never bring up first amendment challenge whene dealing with certain unknowns and a wide array of speech. justice kavanaugh? >> the questions about what is height and scrutiny do we go ony to apply-scrutiny? you when you're opening asked to restore the injunction order to restore the injunction as you are asking we have to mak an

assessment of likelihood of success on how the standard is applied not to do wit standard is that. >> correct. respectfully making the ask of the court but we recognize you can stop s >> okay. do you dispute the problem tex is targeting children's access those who do not dispute the underlying problem we support efforts what songs are properly tailored per. >> do you dispute the societal long-term with rampant access to pornography f children? plustice kavanaugh it's a combo get a question i dot know i can speak to i would say thisre's a is a robt discussion and healthy discussion whether all sorts

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

>> they h avoided the uk has actually suspended age verification pen technological development they thextent the waves they are doi that that's fundamentally different from texas. because this your honor knows europe has all sorts o ferocious privacy protections of penalties if they aren violation for quick that's a fair point. on the change in technolog, how do we evaluate the nature of smart phones that did not exist at the time of ashcroft? >> it tells you that this law i not going to acch its aims because a smart phone can access foreign websites you can use a n up at a click of a button to seedike you're not in texas. you go to the search engines you go through social media can the kids are likeliest to hbway

1181 by f designed is nothing do mean nothing to address this. >> aga i asking those questions because you are asking restore the perimeter on. therefore we need to have a sense of the question. >> i appreciate the question. how do you with a like ashcroft as to evaluation of the facts on the ground as opposed to the legal sd articulation? >> ashcroft was on point here i the way of the world for all time. >> think is permissible looking at itow the technology has d with the smart phones, with the experience the problems caused by cn's access to pornography we now

essentially agree with justice breyer's evaluation of how to apply standard progress asked respectfully know. we are here on up limiter injuti. >> the likelihood we would agr too. ut i think the district court has work to do as reflected in its undisturbed, on challenge well substantiated findings a what the record says that. >> you agree to restore employment injunction by this court we would have to find have a likelihood of success on how whatever level of scrutiny is applied, correct? i've a friendly amendment t that. directed by the district court did ats discret by episode concludingminarily 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. >> j bear. on about level of scrutiny. there are significant erences between this law works on the way the law worked

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

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

they are not putting anyon out of business speakers cannot continue to s here restrictions as an effort is an effort to say were goingo channel this expressionhe burden was analyzer differently that lease for purposes ofhe applicable state of scrutiny. i guess i don'terstand how justice bear hypothesizedhat would be consistent with what we

said in reno. it's pally harmful speech there's the issue there sses a large amount of speech adults have a constitutional right to receive. that's right justice jackson percocet thing is pretty surprised by youoncession to justice kav that we have success.aluate the likelihood of i have a district court tha issued april limiter injunction. in a court o appeals that you say are erroneously stated. i do know why if we determine the court of appeals applied the wrong sd and vacate its 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 a situation where we don't ho be

reaching that merits of success. what we are doing is evaluating the court of appeals was cor when it said this was supposed to be evaluated under the rational basis standard as opposed to strict scrutiny, right question asked all i meant to suggest more gui rather than less in the opinion as to whyxtensively the district court did not use the dion because it may not be if they disagree with you. this is my other question you'd youdiffer the government insofar as the government says just decide the wrong level scrutiny was apply here send it backhe fifth circuit to apply it too. ite no, we should be applying tndard for strict scrutiny. that's what's opening the door to the qns are getting tailored.ther this is nar whether or not the content

fierg software isking long standard fifth circuit and send it back progressive want to be disagreed united states unless lost. we do not he much disagreement on this but we are talking about undisturbed, on challenge findings and determination that follows in our view from this prospect. given the detour taken by the lower court i think it would be helpful. would beirming. >> and they can decide whether nothing district court findings sustain thisnder the proper stda correct? >> that can j jackson. >> found that with respect to ginsburg where the fifth circuit was correct to lt the precedent.

you admitted your truck person who was convi and he himself was alt. i understood the court who has first about the court and the opinion says the person's contention is the broad proposition the sf the expression secured to a citizen to read or see material concerned with sex cannot be made to depend on where the citizen is an adult or minor. he was saying this is unconstitutional because it varies adults and minors. the court said it's enough for the purposes of thie that constitutionally impermissible for new york under 17 ae restricted right and that assured two adults to judge and rmine for themselves what sex material they read. this was right of a minors case the person appeared to be arguing that you could not have

this law because it burns the right to minors. is that the son we have >> is a fundamentally different challenge i dis with you i agree the c was exceptionally clear and ginsbur about adjudicating only the rights of minors in the face of to be confined to the rightood minors. >> here we have a challenge in whh the person is s fine, whatever you do withors. what we are suggesting requiring adults to do something, to do this thing. to access this material burdens our first amendment rights for that's a different issue. >> exactly right adults can speak the website that sed this content have to answer to the age made it a gat cost to break. >> mr. fletcher? >> give mr. chief jusdmit please the court we agree with petitioner's the fifth circuit was wrong to aly only rational basiseview because texas

content burden on speech that is otted for adu similar federal law this court agreed the basis for applying a differentard here. the stasrom restricting the description of pornographyo childrennline. justices have done it in brick-and-mortar stores and theaters. the application strict scrutinye urge the court to emphasize three points. compelling interest in protecting children from arthel ildren online secd loss during that interest is about as long as it does not burden adult access more than nry to exclude children. d third, ashcroft per luminary application o strict scrutiny 20 years ago not prevent courts from upholding age verification requirements today. the verification experience has shown other approaches are not working for a walk on the courts

laws the j deparen was arguing ior of. and playb acroft. either of those thatou ever suggest or argue that this should be a lower standard question because we didn't every on those cases before sable was the first one we argue for something like scrutiny under pacifica. we know the next one weekend about pacifica and made an argument similar to the secondary offense argument my nds in texas make here. playboy be again invoked an argument based on pacifica and justice breyer and dissents me the argument. to concede and ashcroft. >> do you think it is appropriate in this context to protecting children to

compromise the strict scrutiny? >> are not described his current term i would say it's appropriate for the court to emphasize that it's going to be strict scrutiny in this context because of the very unique normally the government does not have legitimate much less compelling interest on its content. here there is a specific category of space defined by i content. speech that seen as the minors but ee agrees the state not only a legitimate interest but a compelling in in making sure minors do not access that speechhat is defined by its content. it's going to make easier based on the ctent narrowly tailored. >> will be easy e for this law to pass? >> i don't know abouthi law. with not taking a position on that. >> youeen staring at this and this law is pretty similar to 20 otheraws that are out

there. you must have some sense even i you don't want to say particularly this look there 20 laws out there are some of them going to pass through the eye of the deal here or n >> let me type the question work late justice thomas did my answers yes too. >> and not talk met some imaginable version. some version that states have enacted. >> and give afic example but we defended the law of this court and ashcroft even after the district court in a third circuit in this court for a no reason to think would come to any other conclusion about aaw that look like that today. the reason hesitating on state laws i do not know there's not much variati in state laws all that raise questions we have out texas law questions of what the law means that would inform the person in analysis but one is the one third requirements petitio sate the lot requires age of an entiresite even if it has substantial amount of content

that is prot my friends from texas if you segregate out the content by an agent gaugeou do not age negate the rest of thent of the website. the second one ihe issue at my friend alluded to earlier about methods of age verification are allowed the icus briefs in texas highlight the new biometric methods tha seem significantly less restrictive. there is question as a colloquy iated whether texas law would allow those methods require some phy identification or transaction of some kind. the last one that'eady come up is which minors a we talking about we talk about minors like to get the plaintiffs stays teen even as the youngest minors we were descending a similar law we took the position that means all asnappropriate value even as two older minors. i think the law becom much easier to defend if texas courts

would adopt the same interpretation of the texas law here. >> if i can add one thought. this court has s in a series of recent person mimic cases can be an important guidepost in deciding what standard of review applies and also thinking how to y that standard in particular circumstances. reflected in ginsburg to be sure but also in a much broader family o laws that restricts the distribution os explained in footnotes one and two adult theaters, adult bookstores,ks and magazines, is a long tradition of restricting this material through age verificatethods that are less formal because his justice alito it's just a requirement don't sell to minors and a clerk in the physical world conjuring up by looking at the person a only requiring id if theson is not obviously of age. there is a long tradition of imposing age restrictions on the distribution of thisial that supports the i

>> mr. fletcher you take a ginsburg to be more than we are done with the rights of minors. it does also impact how we think about the burden placed on pele, adults to ensure minors don't have accs. it speaks tohat 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 justice jackson pickets aode necessarympcation of the decision >> o thought that law was invalid. every understood the content base law that everyone understandurn on adult is okay it's requiring id is the least rtive way. think there it was abandoned in the court suggests some sort age verification or something like that will be better way to do it too. >> rosenberg on the speaker

pr exactly same thing with adult theaters and so and forth. >> okay. >> if we were to vacate the fifth circuit asou have suggested there's some question and discussio about what the world looks like then. with the limiter injunction of the district court room back into effect this law that's already taken effect will now no longer be enforceable? >> wil a question for the fifth circuit that this court vacates and sends it back to the fifth circuit when the court mandates issues the appeal would bring back to life in the fifth circuit and go back to the state of the world before the fifth circtpinion of the state of the world was the fifth circuit had granted a stay of up limit injunction ending in appealt would open to the fifth circuit the benefit of whatever idance is court provided in its opinion to decide in the first instance whether to reinstate that same state pending its further considerationraco to do that if we told they'd done the wrong standard? i suppose it have to go back to the r standard. he interim what happens?

>> some period of time think 35 days before the court mandate issues of our texas would go to the fifth circuit inhe meantime and asked to reinstate the stay. i think the circuit should look at it with the benefit of this guidance and note as a party have informed the court on monday a panel of the sixth circuit stayed upiter injunction tennessee is very similar law in the city state was appropriate even on the assumption of strict scrutiny applied. >> mr. fletcher i say or share some of justicehomas' discomfort with watering down rict scrutiny. i think it's common ground even with petitioner's the state has a compelling interest in protecting minors. i think petits we back your challenging even a different law but they've left open the door to the p possibility. i think there i a sensee the state should be able to t minors. there's not a whole lf room

in the way weraditionally understand strict scrutiny for that to happen. we have this series of precedents. can we find room for the intuition within the parameter of the decision set? this is the case where the state compelling interest in reing speech based on its content. that is exceedingly unusual. that is because of the unique nature of the interest here. i think we give states the room they need in this context but without watering down the other

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

standard reports the principles of the first amendment do not change with technolog the application of technoo the first amendment technology can alter what is ing the principles. how you apply speechrotections face to face might be different ituations where you are talking about the telephone and all sorts of other things. historically, there been changes in the applications law. the basic principles are the same. onee things that is striking about the case is dramatic change in the stores to the access to-mortar pornography which also seems to be dramatically different from what it was 40-whatever years ago. >> there has been a lot of

change but that sounds a lot like the argument where they said the content on social media plfos was totally diffe from the editorial page of the miami herald. that calls different standard of scrutiny. this cou said we willeep the same standard but acknowledge application might be differentecause of the different facts. i think the way to be consistent would be to stick with the same andard. if that does not persuade you, i think it might be a reason to revisit the stand scrutiny if you reach the conclusions scrutiny does not give states the freedom to shis problem. we tnkhere is reason to believe it does leave them that freedom. i think that is another reason not to revisit the presentence. >> youould admit we are in an entirely different world. >> i would not disagree with that.

the world was a world of dial-up internet with ashcroft. >> now, every child has a high-speed access.r pocket with >> did not change in technology affect our opinion from the reversal from quill to wayfair? >> i d know. that was not a amendment case. >> i understand that. >> i do not mean to suggest technos never a reason when the court is revisiting a president. we think texas has not fairly squared up a request before th court takes the separate the fifth circuit thought was complying. if you were to look at ashcroft

based on a party making a pitch to overrule, technological change might be relevant. >> awe as the fact you thought your argument in some of the eli cases, like reno, you suggested a lower standard of scrutiny and thought it would play a role here. >> we did but this court disagreed. [laughter]ew in the towel. >> three times. >> you should not feel offended by that. [laughter] >> justice alito. >> i do not want to belabor ginsburg too much but it is a precedent of the court. you not want us to overrule it? >>ot at all. >> you then have to explain why it is not very important if not controlling here.

what i have heard from you, correct me if i am wrong, is ginsburg did not consir e burden on the seller fors magazines great does that how you would distinguisht? >> i agree with the second part. i think it was a conviction of the seller butrgument he was making was children have the same first amendment rights as adults in the way the court fram argument was the law does not invade the area of freedom ofxpssion to minors. >> i do not think that is the argumentwas made. . ginsburg was represented by sophisticated attorney here is something they said in their brief. the policing problem would become a impossible burd leading the bookseller to abandon sales even to adult thus the adults would be

deprived o literature distribution to adolescents. for the argument was before the urt. the court presumably was aware of it, took account of it, and said the proper standard of rebuke is a rational basis. >> i do not see that in the opinion. we usually read the court precedents and what the court decides. the other i will say is the court did confrt arguments of the rights of adults burdened in trying to protect adolescents and reached a different conclusion. the last thing i will say is we have argued for intermediate scrutiny bef i think there was forced to th the reathink we have a rational basis rargument

would a rational basis ofirely keeping it away from children ev verification requiring you register with the state to ecords of who is viewing what might be a rational way of keeping it from children but those are hard to defend and i think that is another reason why we shied away from arguing ginsburg means rational basis. >> i want to go back to your assertion that if we thought the fifth circuit applied the wrong standard of review we would be required to cause the preliminary injunction issued by e strict court to spring back into effect. the questionefe us is whether we should reverse a decision that stays that

eliminary injunction. would we not have the power to revee decision in so far as it said rational basiwa the prope standard for the port to use but it in place because we thought hythetically this law would with that beyond -- would that be beyond our power? >> what is before you is the fifth circuit's final decision reversing. if you vacate that decisio think normally it would return the ato the fifth circuit and the ball would be in the fifth circ's court. >> it would return the case to the fifth circuit on the terms we thought were appropriate and returning it to the fifth circuit. >> it suggest the court lacks the if it wanted to

grant some stay se. i' there is a way for the court too that if the court the opinion, i'm sure the fifth circuit would follow that ance deciding what the status quo ought to be while the litigation continues. >> just so i have them fresh in mind, you mentioned certain matters you thought would be important tolarify under state law in making a judgment about whether the law satisfies strict scrutiny. uld you pick those off again for me? >> there are. one is the 1/3 requirement. the second question is the permittedhods of age verification and whether the biometric methods comply with texas law. the third is the question about when texas law refers to obscene as to minors, which minors are we t about?

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

website is easier to defend if you accept construction along those li >> with respect to the ped methods of i.d., the counsel for petitioner says the more secure meod the more secure methods are prohibited. do you think that is ambiguous? >> i do know the answer to that end i defer to the parties on that. texas law seems to say you need to have a commercially reasonable method that relies on public orrivate transactional data. i think the question would be whether something that relies on biometric, face recognition, voice ition, satisfies the requirement. >> so to extent whatever

methods are found to be permitted under texas law, if they have greater risk to the user, that would be part of the calculus? >> i think concerns for the use or part calculus, yes. >> thank you. >> justice kagan. >> i want to talk to you about fe on a blank slate. pretend thprecedents do not exist for a moment. ito come back and ask you about the predts, but pretend they do not. make it really blank. it does not seem you are required to say we first argued it in a non-strict scrutiny way because obviously you were feing federal statutes. that was the most natural defend them. i want to take out the fact your first argument was the not strict scrutiny argumt d say, as you are stdi here on a blank slate, it seems to me there are possible ilver

dangers either way. one t spillover danger of you relax strict scrutiny in one place and all of a sudden strict sc gets relaxed in other places. the other is the spillover danger of you treat a clearly content-based law is not requirg rict scrutiny and all of an you start seeing more content-based restrictions that do not haveo satisfy strict scrutiny. i want to ask you u weigh those dangers. i read u has just got to be the case thattas can do some regulation -- i read you as saying this has just got toe the case that states can do some regulation in this area. how does that happen? does it happen by notching down strict scrutiny or by saying thisf restrictions comes outside it? >> you read me correct. i genuinely tnk there would

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

that one might wanto distinguish them? >> i think ashcroft particularly hard because that was that looked in terms almost exactly like the la issue here. i take justice barrett's p that age verification was an affirmative defense. it was basically exactly the same. the logic of the court's opinion he earlier line was defining sexual material harmful to children. this category of material kids can be prohibited from seeing that was a content-based this getsmplete my answer to your earlier question about why i am more worried about the second category spillover. that starts to bringt just this particular corner of the court's cases fl the otherso the down this is what it means taid have a content-based law.

iry if you start now trying to carve back on ashcroft and the other cases you would have spillover into those broader areas of first amendment law when recognizing strict scrutiny functions differently here and is limited to this corner of the law. >> thank you. >> justice gorsuch. >> iant to follow up on ashcroft just a little bit. you seem to think that is the major impediment. >> the most direct one, sure. >> that was a p.i. where the government did not contest the leveof scrutiny? does that help? >> i think it was a p.i. i think the court was self-consciously tenti in some parts of its analysis, especially the application of ct scrutiny. i do not think the court was tentatout what the relevant level of scrutiny was. i read it to y we have a

content based restriction of speech so strict scrutiny applies. >> also incomplete factual record it repeatedly emphasized. >> completely agree. all the more reasonourts have gone overboard is treating strict scrutiny as controlling. even 20 years later, i would put the standardn a different category. >> what do think about justice o'connor's concurrence ino? >> i think there is a lot of force in her ideas. i take her ideas to be a lot like justice kagan's and there ought to aay to translate that same idea into the world of the internet. ave not advocated for thehat. standard she advocated for their cae we view the a higher standard. as requiring as far as the thrust of her logic and concerns about what states ought to be able t we agreed. >> you agrh the principal there is a compelling government

interest. there must be some white in the world to effectuate that? i think there is a lo force. i hesitate to say that is always true in every circumstance. in this area, yes. >> justice kavanaugh. >> to follow up on justice gorsd justice alito's questions about if we vacated the state of play. ere was a stay before the decision. so, is a p.i. in effect or not in effect afr mandate issues? on, i do not want to speakrther for the parties if there is somethin missing, but i would think absent further action from the fifth circuit, ifhis court vacatesifth circuit decision and remands, the result wo be the preliminary injunction would come bto effect. if i were defending t, before that happened, i would renew my previously granted

moor a stay pending appeal and i would make arguments about why pending the fifth circuit's further consideration. >> do you think a stay should be is >> we have n taken a position because bound up with uncertestions about what the texas law is. >> the courts will have to m a likelihood of success determination. you have been looking at this a long time. you do not have a likelihood of success assessment? >> we doot >> ok. on ashcroft 2.0, how do you think we should handle specifically the application of ?he strict scrutiny standard? should we just say it is overtaken by events, no longer valid? tell us how you think we should >> you mentioned star decisive -- starry desisis. i read it as self-consciously

very ten. before emphasis was on the. and discretion. st couple of pages of the op the court is saying nothing we are sayingeeps them from concluding the stri scrutiny is satisfied. i think the court can say given that, nothing in the opinion forecloses the courts from deciding 20 years later with the benefit of experience that strict scrutiny is satisfied. >> one qn on how you would to be one of thky partsit seems because everyone agrees compelling it. "appropriate tailoring," which i think is a good phrase. one thing that concerns me is peoplehere is a less strict of alternative. it is important to say any less restrictive alternative has to serve the compelli o important interests to the same

degree. am i right in sanghat? >> i think you are right. i agree ats important. >> as are the sort of things the fifth circuit can say on remand they would go through cord and try to assess whether the district court got it right with and that sort of thing?atives >> yes. >> that is why the government is saying, why don'you remand it instead of us taking that on? usual practice -- in deference to the court's usual practice, we think there are reasons for the court not to wade into it now, exactly. >> with respect to the technology question earlier, i' trying to figure out which way it cuts that we have advanced in technology. i can see that it cuts both ways. on one hand, wee a new set of circumstances that allow for

minors to ge material easily and it is ubiquitous but i think the district argument is the technology heigthe risks and burdens on adults trying to access this material if they have to do a biometr stand or certain things that are impinging on privacy in a way technology now allows. it is not clear to me just the fact that we have technology is running in favor of allowing this law to stand as is. >> i agree with that technology does not necessaril tug in one direction. want to ask both of those questions. what i would say about technology and the burden of two observations, the factual observation is i think the world now includes mo options to verify your identity than in ashcroft that are more broadly us

one of the things that gives us more confidence is this is being ed in the gambling industry in buying alcohol. it is a much more mm part of society. that can give courts more confidence saying this is an apopriate method of age vetion. the second one is a legal point. k there is some tendency on the petitioner's side and district court to say the relevant burden is, will people behied from doing this? i think burdens on privacy are important the court should ask those questions objectively, suggestively -- subjectivel there might be peopl embarrassed to show o take a magazine off iraq. the question is whether the or unnecessary.vely excessive >> i noticed your brief did not say anything about whether the affect society.f the challenge i presume in thinking about it

that is because the distinction between and as applied is not have any bearing on the question of the level scrutiny. is that right? >> exactly right. before deciding whether the law is invalid, you have to decide the relevant standards. that is the on we take to be squarely presented to this court now and that is w we focused on that and not have the of that might cash out. >> think it. -- thank you. thank you, counsel. mr. nielsen? >> mr. chief justice, and may it please the cpetitioners do not dispute t websites are not meant for children, that the harmhildren, and that children are watching. the court faced the same situation with brick-and-mortar stores and apply rational basis

to a law limiting adult content to adults. this case is the digital version of ginsb three cases proveheoint. ginsburg itself applies rational basis where a store can only avoid liability by making "a reasonable, bona fide attempt to ascertaitrue age of customer applies rational basis for speakers to separate the audice before speaking a message to some buno all. in ashcroft 2.0, the court did not apply rational basis because congress limited by 1990's technology went well beyond ginsburg and sable. to understand ashcroft.0, you have to understand ashcroft 1.0 and lookow the court treated sae. age verification tay is simple, safe, and common, inclnonidentifying means.

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

multi-billions if not trillions of exchanges. how do we determin burden, assuming we agree with you, and i think most people do, that kids are to be protected, how much of a burden is permissible on adult' first amendment rights? >> so long as ginsburg is part of this court's canon, any burden less than the burden at issuin ginsburg arily must be ok. >> how does that translate in a world in which you are not talking about one-on-one transactions but billions of ansactions? >> that cuts in favor of texas. one of the important parts of modern age verification technology is that you can do it without identification at all. the fifth circuit was clear that under texas law, biometric scanning is ok. in other words, there is no i.d.

or anything like that. it is just a face sc. if that is too much, wod port the court to the brief of the age verification providers association. there all sorts of thingyodo that no identifying information. >> you are talking about rational bis. you would think rational basis would permit quite a high burden on the first amendment rights of adults versus strict scrutiny. >> this is where i think it is important to understand the scope of ginsburg. ashcroft 2.0 is psident. we are not fighting that - ashcroft 2 i president -- prr ecedent. as long as you are verifying this is a kid, th is rational basis. beyond that, you are in the world of ashcroft 2.0. >> what if ing took the form of a law that the state says what we would like to have is everyone who comes in needs to present a copy of their

passport, a copy of their birth rtificate, and an affidavit om their biological parent? is that also rational basis in imposes on adults?n that it >> no, your honor. >> w not? >> because that is far in excess of what the court recognized in ginsburg. >> but the court in ginsburg was not analyzing the means by which age cation was occurring. the court is allowing for age if verifi, how far can a state go in terms of burdening adults showing how old they are? and it seems to me that you're conceding that at some point a state would not be able to require an ao jump through a million hoops to prove their age. and if that's the case, isn' that the work of strict sc? i mean, i thought that what scrutiny was doing was assuring that the burden that's g imposed is one that is

cessary. because we understand th adults would ordinarily have access to this mat we appreciate the state's interest in protecting children, but we're not going to let the state impose a thousand things that would make it really, really or adults when there are other alternatives to prot children. i thought that was the whole point of the strict scruti analysis. mr. nielson: se are two precedents that the court has to give weight to both of them. there is ginsburg and there's as ii. justice jackson: i understand, but you're reading ginsburg to suggest that the court has blessed every kind of age verification that a statd require of an adul to the extent that ginsburg, you say, is focused on minors and states "protecting minors" and the fat the burden falls on ato prove their age is not a big deal, i'm just

state looking at ginsburg could do something very, very burdensomen der to protect minors. mr. nielson: yeah, what i'm tryisay is i'm not suggesting that you could do anything under this. and i know that because of ashcroft ii. there are two cases, both of which are precedents of this court, both of which have meaning. justice jackson: but wouldn't rational basis allowo do anything? i mean the state wou, "it's rational that we have a parent affidavitse people can lie about their age and what we want is to make sure that minors are protected." mr. nielson: and ashcroft ii , at some point, you've gone beyond ginsburg. ginsburg, we know ess we're writing ginsburg out of the law, if it's the burden is no greater thaing an id in ginsburg, that's not strict scrutiny. ste kagan: well, i think what the question really was is, what is that point? what is the point at which y line in your view?sburg/ashcroft mr. nielson: yeah, so this is where i inyou can't

understand ashcroft ii without understanding hcft i. and in ashofi, the fight between the plurality and the rest of the court was, hey, does sable mean that it applies whatev t technology is? in other words, whatever the burden, if you can't do it,ho cares? does sable mean that it has to be technologically and reasonably possible? i don't know where the answer is, where the cot on that extension of sable. i do know th gsburg is a holding of this court that says, "so long as the burden is shinan id, that doesn't trigger strict scrutiny." we are less than that. i don't know the exact line. justice kagan: can i ask you general -- and this is, i'm shifting ground some, u've now heard mr. fletcher's three concerns or three questions about your law. i think you heard them twice, so you probab mr. nielson: i wrote them down. justice kagan: ok. how does texas's lawfare given those three concerns? are genuine concerns?

do you pass them or fail them? mr. nielson: yeah, they are not genuine concerns. first, the one-third requirement. i have two points on that. that's how states generally define sexually-oriented businees illinois says you're an adult bookstore at 25% of your ntt. a's how san francisco defines whether you're an adult bookstore. so that's point on jt generally. but specific to this statute, i urgeheourt to look at the language. one-third requiremt plies to whether they have to satisfy whether the law kicks in, but it's not referring to the content at issue. i'loing at the language here in section 129b.002. e keywords are "the material." is that referring back tal sexually harmful material toor minors? no texas court has had an opportunity toat this. this is a facial pre-enforcement challenge, but our reading of that is it's going to be limited

to the sexually harmful terial. mr. nielson: number two is the permitted methods, biometric. we have a holding from the fifth t on this. 11a. is at petition appendix biometric scanning is fine under fifth circuit law, and under texas law wegr with that. that's in our brief, that is the positione attorney general's office. aner three is, "obscene as to minors." again, two points. this was the fight, or one the fights, at issue in ashcroft the court said we followedhe same language and the court said that was fine in ashcrofi. but our reading, ain texas, i'll tell you, texas courts read st carefully. they follow the text of the statutes. i am looki aour definition of sexually material harmful to mirs that's section section 129b01 the third part is we define minors as those under 18. taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

in other words, that includes up to people who are 17. so their idea that -- juickagan: so if i understand you correctly as to those three, as to number two and number three, you say, el even if that's a legit concern, our law is ok with respect to it." mr. nielson: yes, your honor. justice kagan: i don't think that that's quite your answer withct to number one. is that right, or is that wrong? mr. nielso i think we're fine with number one. my point is that even if i'm wrong about how texas law works, we' still ok because then we're like illinois and san francisco. i don't think i'm wrong about how texas law works. justice kagan: i see. mr. nielson: if you take the content and u t it behind an age screen, we're not counting that. justice kavanaugh: your -- justice alito: so if you -- keep going? justice ugh: no, i apologize. justice alito:to clarify with respect to point one, so a particular website has some hardcore pornography thais obscene as to minors, d en

it has videos of somebody reading lady chatterley's lover or something like that, can the latter be segregated? mr. niso so i have to argue with one hand behind my back beuse no texas court has an opportunity to look at any of this. i'm just giving you my reading of the statute and bedn what i know about texas courts, and the answer would be, yes, it could be segregated. justice sotomayo b no court has said that yet. mr. nielson: correct. and that's part of the problem. i know trt has had some unhappiness with these facial pre-enforcement challenges. this should be exhibit one in the case against them. justice sotomayor: this la doesn't protect somer says you can't retain this information. the other side in its brief argues that th dsn't mean you can't sell it or give it away. mr. n: yeah, some responses to that. one, i don't know if that's even technologipossible. i don't know how you send the information without having at

least instantaneously reta that doesn't make any sense to me. also -- justice sotomayor: well, you have to receivo make a choice. someone is receiving it to make a choid presumably the law says after you've made the chs this an adult or a child, you've got -- after you've made the choice, is this an adult or a child, you've got to delete it. mr. nielson: c. justice sotomayor: but in that interim, whei receive the information, before i make the choice, i could just give it o another entity. my name, when i visit a website, unless i've prohibited the viewing history, everything is automatically transferred to other people. i'm wrong about that.ay that again, i don't know the technology -- justice sotomayor: well, that's the point, because i d't know. mr. nielson: i don't know how you do it. but i went anyway, so this is why it's important. justicmayor: that's once you get to a trial, and somebody figure out. mr. nielson: i'm saying that under the fifth cir's view of the law, which this court did

not grant cert to review, biometric scanning is ok. so there's no identifying formation to even turn over. so it wouldn't make. even if you transferred it, you're not transfe identifying informat identifying information, no one does it. again, i point to ief, to the age verification association -- justice sotomayor: we're talking in a vacuum cae i don't know the record. i do understand iometrics sort of looks at a face. mr. fletcher said it looks at a hand, or someone said it looks atd. i have no idea how it works. but i do know that dna evidee can be picked up frothpaper i just touched, and i don't know if biometric information can be used to create other things. i don't kn a of this. none of us do. so the question is before any judge can determine whether this lathe extent of its burden or lack thereof, someone has to determine that, doesn't it?

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 mo second. the last point about all of that is, of cours petitioners get to choose who the age verification provider . so if they don't like the age cation provider's policies about that, well they can stop that too. it's within tirower. they have self-help measures. justice kavana think earlier when you were discussing ginsburg, you said ginsburg applies to age verification requirements, and thus, age verification requirements get rational basis review, and 's how you distinguish. but then you said, "not if they're too burdensome," which doesn't sound anymore like rational basis review. but m actually not interested in whether we call it intermediate scrutiny or stric rutiny or rational basis. for purposes of this question, is the statement of princie,

first amendment principle that you're seeking at a broad level, age verification requirements are permissible so long is they're not overly burdensome on adult access? mr. nielson: yes yes, your honor. and that'w i understand -- justice kavanaugh: and those are the exact adverbs and adje, "overly burdensome," or do you have a preferred statement? mr. nielson: i guess i would say soas it's incidental to verifying age. again, i don't know what overly burdensome means. justice kavanaugh: tt's a little different. exactly. ok. and then you have to look at how much burden is on the adult access, which i think you've conceded. conceded is the wrong word, but going to necessarily be part of the inquiry because you've said a few times if it's more than the ginsburg burden, at some point, it oss into too much. mr. nielson: correct honor, because we are trying to reconcilroft ii and ginsburg. juste vanaugh: and you've -- and again -- mr. nielson: i don'think i conceded, but -- stice kavanaugh: yeah, i'm not way.g the word conceded in that you acknowledge that a law, for example, that mr. fletch identified, that just banned all pornography, on the idea that

that would serve the iert in preventing children from accessing it, that' impermissible. mr. nielson: correct. that's the second part of sable. justice kah: right. and then also to justice jacksothe requirements for age verification were so onerous and unnecessary that they burdened, really prevented many adults from accessing constitutionally-protected speech as to adults, you also acknowledge that would be impermissible. mr. nielson: yes, your honor, because again, that's how we read ashcroft ii. justice jackson: but, mr. nielson -- e barrett: mr. nielson, why are you saying that it's liarve-out of content discrimination? because you heard my interchange with mr. fletcher and also with your friend on the oide when i was trying to see if there was a way of just exploring how doink about ashcroft ii. and there is some content discrimination here, right? because you do have to look at the content to decide whether the agfication requirement applies. kavanaugh when you say, "no, no,

no, no, no. ouldn't be what mr. fletcher said." that if rational basis review applied, they could ban the whole category because that would be a rational way of protectildren. you say that's not the case because we look at ginsburg, and it's just age verification. nielson: yes, your honor. justice barrett: so is thili an age verification carve-out, like its content disation doesn't trigger strict scrutiny if we're talking about age verification? is that the argume mr. nielson: gss there's two conceptual ways to understand it. i'm not sure what ginsburg, which one they did. as long as you're allowed toing, have two different g you have to have some way to tell the difference between the two. and if it's just incidental, the gatekeeping, that doesn't itself trgestrict scrutiny. that's one theory of ginsburg. thotr theory of ginsburg is that just looking at fication just isn't a nstitutionally cognizable burden. that would fit in with the crawford line of cases for voting. that would fit with the americ library association, where they

say going to the librarian, that's embarrassing. that's just not a cotionally cognizable burden. justice sotomayor: but if -- justice kavanaugh: but you said -- justice sotomayor: i understan you correctly, you are saying, d this goes back to justice jackson's hypotheticalth when the burden gets too great, when they' asking you to do all these unreasonhings, that's the point at which, if i understand you correctly, tell me if i don't, it flips into not rational basis review, but into a heightened review, strict scrutiny. mrson: correct, your honor. that's how we read ashcroft ii. stice 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 loin the constitutional analysis, but it usually maerwhen you're applying whatever standard you'repplying. it doesn't usually push you like, "oh, this burden, it's very hard to meet this age verification requirement so because that's true, it pushes you into a differt standard of scrutiny.

i don't know if i can think of anything like that in our law. mr. nielson: yeah, i agree. that is a curious effect of reconciling ginsburg and ashcroft ii. justice kavanaugh: but it's just inherent in having an age. e category that can't access and another category of said, for determining it.stave but i think in reply to justice jackson and justicn, you've said, "yes, it could get too burdenso in other words, even age verification, i think justice kagan was just saying this, even age verification could get too burdensome if you did things like passport or something like that. mr. nielson: correct, your honor. n, tre's -- justice kavanaugh: again whether you call it whatever you call it. what you call it is important. justice kavanaugh: well, i'm just going to ask whatever you call, it can't get too burdensome, right? mr. nielson: yeah, so i mean the north star here is so long as ginsburg has saning, so

long as the burden is not greater than the burden at a ginsburg, rational basis ies. justice jackson: but mr. nielson, the burden was not the issue in ginsburg. that's my only problem with what you have said, is that i took ginsburg to be establishing the initial principl you start with, that it's ok to treat minors differently than adults, period. but that's the holding of ginsburg. it wasn'talking about the extent to which figuring that out was going to burden adults and how much the adults' first amendment rights were impinged operating that principle. it was the first case to establish, in thisxt, that minors don't have the same rights as adults to access this material. then we go on in other cases, in the cases that justice sotomayor raises, to evaluate, "ok, now that we know that we can separate these two categories of people," you're absolutely ri that we have to have some way of

but these other cases are about how burdensome the way of doing that is, andat extent. and you seem to be agreeing that there's t at which the burden that you're imposing on adults are going to be too much. and my only point about the dard mattering is that i thought the work of rational basis review and strict ny was to evaluate whethe is too burdensome, that we say, because the adults have a certain sc first amendment rights, you can only impose a burden that is the least restriway of reaching your compelling interests. so, we don't need a new set of ciples or tests. we have a test. the test is strict scrutiny and the government says, mr. fletcher, says there might be a way in whi ts actually satisfat.

. elson: so that test can't be right. and the reason why it can'be right is it would mean that if a state wants to stop kids from going into a strip cluy have to satisfy strict scrutiny. justice jackson: no, becau kids going into a club poses no burden on adults. that was going to be my other question for y why would saying a kid can't go into the strip club pose any burden on an adult who wanted to? mr. nielson: if we said, "you nelook at id's, if you have somebody, you can't tell they're an adult or not into a strip club." stice jackson: so we apply strict scrutiny. nielson: you would apply strict scrutiny to that. justice jacknd then we say, "is this the least restrictive means?" and you say, "yes, fine. you can do it." mr. nielson: that is not at all consistent with adition and history. as i uand strict scrutiny, againow there's different views on this. inderstand strict scrutiny, the idea is this is generall t ok, but sometimes we'll make an exception if there's really extraordinary reasons for it. but in our historyweave always said kids can't come and look at this s

so it seems not correct to me as a historical matter to say, "well, actually, it's always besumptively unconstitutional. but on this one thing, we' done it forever, strict scrutiny satisfied." always been justice barrett: mr.on, i want to take you to the questions that justice kagan was asking mr. fleabout the dangers. i just wanto posit this, this is all just pretend. win, that texas should win.ld and e kagan asked if that were so, if there is a way that states should be able to te, and the federal government, should be able to regulate this, we have to how our first amendment precedent might acate that. and justice kagan identified for mr. fletcher twons. one would be to say that this kind of regulation can satisfy strict scrutiny. and the other might be to say in this context, intermediate scrutiny makes more sense. i just want to take rational basis off the table. mr. nielson: yeah. e 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,o am very worried not about this law. i think we're going to pass strict scrutin i hope that that is where the uris, that this law passes strict suty. i am worbout my strip club example or any other sexually oriented businesses. if we start saying that the standard is strict scrutiny, i hope this court says, "oh, that's ok. it passes strict scrutiny." but there's a whole bunch of law on strict scrutiny and a whole bunch of dif judges across this count going to apply it. there's a bunch of cases that say fatal in fact. and we're going to have a lot of pi's and a lot of emerg litigation. that's a problem, a real world -- justice kagan: but that wouldn't be true necessarily, if we wte the kind of opinion that mr. fletcher had in mind, right? because then you would say, "this is the kind of strict scrutiny we're talking about. this is what will pass it. take us seriously." mr. nielson: so that's within control of this court, for that language to be. i hope if such opinion gets written, it is very, verclr

that we shouldn't get these pi's like this. justice alito: general nielson, let me see if this is consistent with what you're saying. if a law probi or regulates a type of speech that is not entitled to any constitutional tion, the content of the eech does have to be examined at the outset to determine whether it falls within that category. and the fact that that preliminamination is necessary does not mean that the laisontent-based and therefore is subject to strict scrutiny. mr. nielson: yes, your honor. justice alito: so wht may suggest is that while this preliminary exion does not render the law content-based so long as it is not too excessive, then strrutiny is not triggered. but crosses a certain point and it becomes too rdensome, so that it is more make that thresholdnecessary to determination about whether the speech is constitutionally protected, then you go into

another level of scrutiny. mr. eln: yes, your honor. d think that ginsburg is consistent with that view. justice jackson: what about packingham? justice sotomayor: the problem is that e eech here is not just about obscene speech, which is not subject to any rational basisctiny, only because 's -- i'm not even thinking rational basis, because obscene speech is illegal for adults or minors. correct? mr. nielson: it can be made illegal. yes, your honor. justice sotomayor: it can be maegal, not automatically, but it's not protected speech. ene speech is not protected. mr. nielson: exactly, your honor. yes. justice sotomayor: problem is that this law't protect, doesn't make illegal just obscene speech.

it makes illegal obscene and cent speech that might affect children. but adults can view indecent speech, correct? mr. nielson: yes, your honor but not if children are there. justice sotomao. let's not quibble, nn children are there. than determining whetherer something's obscene. you have to figure out whether it's indecent for children. correc mr. nielson: yes, your honor. i so. justice sotomayor: yeah. it's not merely checking to see if something doesn't have curse words or some fighting words or something lat. you're actually asking adults to not look at someuntil they do somethie, something that's legal for them to look at. mr. nielson: yes, your honor. and i'm saying that so long as ginsburg has any meaning -- justice sotomayor: counsu keep saying ginsburg. i look at the court's decision. the facts are that a bookseller was found criminally liable for

selling, i think it was to a 16-yeaol the age doesn't matter right now, but an underage child. and his attack, and this is the court saying, "it's t that new york was without power to draw line at age 17. rather, his contention is the broad proposition that the scope expression secured to a citizen, to read or seed material concerned with sex, cannot be made to depend upon whether the citizen is an adult or minor." and the court, he insists, "that the denial to minors under 17 of accessterials condemned by the law, insofar as that material is not obscene for persons of age or older, constitutes an unconstnal deprivation of protected liberty." so it wasn'e age verificati tt was at issue in ginsburg at all.

the court had no reason to address it. court was speaking to ast the involving rational bwas whether obscencent materials had to be made accessible to kids under 17. we can all read ginsburg, but do you have any language in ginsburg that even addresses the age verification issue? point me to one line in the entire petition, other than describing the law, that talks about the burden of the age verification. mr. nielson: look at the ver st paragraph of the opinion. that's when they' discussing whether mr. ginsburg had notice, about his obligations nder the statute. the court was very clear. to be sure, that was framed as a due process type claim. it was vear that they

said, "no, you know." justice sotomayor: it was a due process. mr. nielson: well, it's very clear. u know what you're supposed to do. i would also point to e language from the brief that earlier, "i've not heard of aed court limiting a case to less than its facts." and there he raised the argument saying, "if this happens, i'm not going to be able to sell it to adults." and the court said essentially rational basis. that'w i ad it. justice sotomayor: thank you, counsel. justito: thank you. justice thomas? justice thomas: no. justice alito: anything further? justice kagan? justice gorsuch: one quick question on ashcroft. crossed the line in your view because, and i want you l in the blank. and one possibility, of course, might be that the law there made it illegal to post, that is to even create, to disseminate the information, with the age verification beiy an affirmative defense. mr. nielson: yes. that ion there. there's three points on this. again, ashcr doesn't say

what the burden was. justice gorsuch: yep. mr. nielson: you have to read into it. one is that is clear from the opinion anice stevens concurrence, that's a big problem. another problem, if u back to the district court, was to do this, you had to have databases of credit cards. this is nothlaw in texas. you can't keep the data. so there are no databases. and ththd is, again, to go back to ashcroft i, because you can't separate communities uer 9's technology, if you send it out to the whole world, that's effectively meant some places, content that's t en seen as to minors would be behind age screens. and that's a burden that has not existed here. we know for a fact that they can segrege geography. when texas's law went into effect, pornhub left texas. they're still operating i louisiana with age verification. so we know that that's no longer ue. justice gorsuch: thank y justice alito: justice kavanaugh? justice kavanaugh: just to

follow up on justice alito's formulation, which i thought was helpful. so the rule then, age verification requirements generally permis but they can become too excessive to use his formulation? or i tnkou and i discussed, or can become overly burdensome? mr. nielson: yeah, and that' why i use incidental. stice kavanaugh: right. and if so, impermissible but otherwise they're generally permissible and commonsensical. i think that's thc framework. mr. nielson: yes, onor. justice kavanaugh: ok. and then just mae to piggyback on justice gorsuch, this law is not too excessive or overly burdensome because, and fill in the blank. mr. nielson: it's less than in ginsburg, and we know that because you don't even have to provide identifying information. so in ginsburg, if there was a marginal case, you couldn't tell if it was a d an adult, you had toooat the id. you don't have to do that unde texas's law. so however you read ginsburg, we e less than that. justice kavanaugh: thank you. justice alito: justicett?

justice barrett: mr. nielson, there has been somussion 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. nielso yh, so the view of texas is if this court were to vacatthfifth circuit's decision, then the fifth circuit's stay would go back into effect because it was only the fifth circuit's decision that took out the stay. that would take a separa order. now, i know that the other side is going to fight me on that one, so we prowould do what mr. fletcher suggests and go back to the fifth circuit for clifation. i ask, if anything else, that the language is clear to t fifth circuit, that it knows it can re-institute the stay. that gets lostanslation sometimes when you get a decision fm is court. they're like, "oh, i guess we can't that anymore." we don't want to get sum red. we respect the court. if that were to happen, i ge the court to please let the fifth circuit know. buouview is that because it was this decision that the court is reviewing that vacated the fifth circuit's staystay would then spring back to life.

justice alito: justice jkson? justice jackson: yeah. your last collith justice alito suggests that your argument is that rational basis review applies to state laws that serve merely to screen certain people from accessing online content that they hav constitutional right to access. or at least it could be th of in that way. and neither party cite case in their briet i wonder whether this would run afoul of packi i don' if you're familiar with that case, but it's one in which ked at convicted sex offenders who were trying access social media es, state law precludit. and we applied heightened scrutiny even tht sort of raised the same kind of dynamic that you say rational basis review would apply to. so i think we would have to try to figure out how the standard orhe principle that justice alito articulated would be

nsistent with that case as well. mr. nielson: yeah. i confess, i've probably thought i read every one of this court's recent first amendment cases preparing for today's argument. i did not read packingham. i d't know, your honor. but i do know that we are in the exact same context as in rg. so whatever the scope of ginsburg, we fall within it. in a way, on whether or not we agree that ginsburg was speaking to the burden or speaking to the age requirement as opposed to making the initial determination that minors can be treated differently than adults. mr. ni i trust your honor on that one. justice jackson: yeah. mrson: i would also say the other way that you could think about ginsburg, of course, that an id requirement is just not a constitutionally would be consistent with some of this court's otses, and not fall within thingham -- justice jackhe 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 by this.endment was implicated and in fact, i thought they thought it was a conteed restriction, but the ginsburg still applied to have a different rule in this situation. mr. nielson: all i'm saying is that you can conceptualize ginsburg in multiple ways. we are ok under all of them, but if there are problems that way, i would urge the court just to ink, "well, look at the voting id cases," and that sort. we are ok under those line of cases too. justice jackson: thank you. justice alito: thank you, counsel. rebuttal, mr. shaffer? mr. shaffer: thank you, mr. chief justice, and may it please thcourt. let me start with ginsburg, i may. we've talked a lot about the ct that that opinion was addressing 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 had a way to screen out mfrom specific content. and it dn't say if more than one third of a store is inappropriate for minors, minors have to be kept out of the store. thisawiffers in all of those respects.

question about, let's wipe away for the moment, justice kagan, the precedents that this court has laid down for dede about sexually indecent speech that's inappropriate for minors internet.ronic media and via the let's wipe it away for a moment. i strongly urg court to stick with strict scrutiny as the applicletandard of revin we're talking about content-based burdens on sp. this court has an area of law is clear, that is well understood, that is reliable, that will withstand mounting in varied attacks. because we all know when strict scrutiny applies, it applies here. and i would urge the court to stick with it even if we forget about e point precedents r e moment. there are principles that i think are importan riable principles that will serve us well going forward. yes, in this context, but also in others. and so that bringse,ustice kagan, to your question about what about 20 otr ws that by some views, may look a lot like texas's. i can tell your honors, this is

the worst of them. thiss e worst of the laws. it has the health warnings where is telling these targeted speakers and their users that things, contributing tother prostitution, chil exploitation, child pornography. you have a hosegulator who's saying to adults, "you should nhere." you have no consideration whatsoever of content filtering number one alternative that this court had called o. you have age verification that just, respectfully, does answer the description that texas's amici are offering and to today, which is ageng the plain terms of the law would permit. and you have none of the protections ou would expect from a responsible regulator who's concerned abou adults' interests here. you don't have enforceable rights for them. you do not have privacy protection. you do not have confidentiality of information. you do not have the government saying, "we cannotrypen this

information and use it against you." all of tt,our honors, you should await a state or the federal government doing its work, showing its homework having something other than the here, and a blank legislative record that tells you nothing about why texas would've arrived at a law that looks like unless it was out to chill adults and chill speakers when it comes to expression that is cleay otected as to adults. and i want to offer the ashcroft w, if i may, as a point of comparison. we think that this is the -- your honors. the court was looking at federal legislation on a well-developed, comprehensive legislative record where you could see what ss was doing and why it was doing it. and it was a serious, e effort to regulate justice kavanaugh, as we were discussing, to protect kom all of the content that was deemed inapproprteor minors regardless of its source. texas's law is not f that

purpose, for reasons that have gone conceded, i think, effectively by texas and by its amici. and you can find well-substantiated set of findingsthe district court about how under-inclusive this law is. your honors have room, and i understand sympathy, for ste that is trying to do its job to regulate in this area conscientiously. and i want to assu y, justice barrett, when we talk about scrutiny that is strict in theory and fatal, in fact, i was lucky enough to learn constitutional law from gerry gunther. that resonates. none of us is suggesting that, in this context, strictiny is fatal. it is not. it should not be. we've conceded that there is a compelling interest here. the question will always be, has vernment tried to arrive at a less restric- has it tried to do this in a way that is not unduly burdening adults and is truly protecting kids? on this law answers to strict understood, i do think,g been

respectfully, this b an easy case. the last point for mr. fletcher, and i agree with so much of what he says, he talked about tradition as a guidepost here. and i would just note the tradition that we have on the internet. on the it. justice kagan, we've come a long way from when we wereir talking about the internet and had to explain what it was. but reno and ashcroft have been absolutely fundamental to how the internetaseveloped as a free medium of expression, as our modern public square. and e 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.