The Supreme Court has heard two cases in the last week that implicate weighty First Amendment questions. On Friday, the justices heard arguments in TikTok v. Garland, a challenge to a law that could force TikTok to shut down in just three days. And yesterday, the Court considered Free Speech Coalition v. Paxton, a lawsuit challenging a Texas law that mandates strict “age-gates” (such as ID scans) for websites with adult content.
A running theme in both arguments was the application of First Amendment “standards of scrutiny.” These three standards, also known as the “tiers” of scrutiny, are “rational basis,” “intermediate scrutiny,” and “strict scrutiny.” As the terms suggest, rational basis is the laxest form of judicial review (by far), and strict scrutiny is the most searching form. Which form of scrutiny to apply in a particular case is determined by various legal doctrines that attempt to categorize different types of speech restrictions. For example, a law that treats some speech less favorably based on the content of that speech must be subjected to strict scrutiny.
The justices’ questions, especially in the Texas age-gating case, suggest that they are grappling with the relative risks and merits of two approaches to judging First Amendment challenges. Should the outcome of most cases be determined by the choice of which scrutiny to apply, or should the outcome be determined by the application of scrutiny to the facts of that particular case?
It’s safe to say that the outcomes of First Amendment cases are frequently (but not always) determined by the choice of which tier to apply. Strict scrutiny is so difficult for the government to overcome that law professor Gerald Gunther famously called it “strict in theory, fatal in fact.” And on the opposite end of the spectrum, rational basis is so deferential that it’s nearly impossible for the government to lose.
But the DC Circuit bucked this trend in its opinion in the TikTok case, assuming (without deciding) that strict scrutiny applied but holding that the law at issue satisfied strict scrutiny. However, the DC Circuit’s version of strict scrutiny didn’t seem to be as strict as usual, given the extent to which the court gave the government the benefit of the doubt in its analysis of the facts. Cato’s brief on appeal to the Supreme Court riffed on Gunther’s phrase, calling the DC Circuit’s version of strict scrutiny “strict in theory but friendly in fact.”
During the TikTok argument last Friday, several justices explored legal theories by which the law at issue might be subject to something less than strict scrutiny. For justices inclined to uphold the law, such an approach might seem appealing as a means to do so without “watering down” the very high bar of strict scrutiny, as the DC Circuit arguably appeared to do.
And during the Free Speech Coalition argument yesterday, this dilemma was clearly still on the justices’ minds. Indeed, it’s possible that some of the questions were prompted not just by their consideration of the Texas law at issue in Free Speech Coalition but also by lingering questions in the TikTok case.
Justice Elena Kagan elegantly summarized the two options, noting that “there are possible spill-over dangers either way.” First, there is “the spill-over danger of you relax strict scrutiny in one place, and all of a sudden, strict scrutiny gets relaxed in other places.” Alternatively, “you treat a clearly content-based law as not requiring strict scrutiny, and all of a sudden, you start seeing more content-based restrictions that don’t have to satisfy strict scrutiny.” So, if courts are to leave the door open to upholding some laws that place barriers on access to adult content, “Does it happen by notching down the strict scrutiny standard, or does it happen by saying, for some reason … this set of restrictions comes outside it?”
Justice Kagan wasn’t the only justice with strict scrutiny on the mind. When a US government attorney argued that strict scrutiny should apply but that some state laws that age-gate adult content online could potentially satisfy strict scrutiny, Justice Clarence Thomas asked, “So do you think that it’s appropriate in this context of protecting children to compromise the strict scrutiny standard?” And Justice Amy Coney Barrett remarked that she “share[d] some of Justice Thomas’s discomfort with watering down strict scrutiny.” Echoing the conventional wisdom that strict scrutiny is nearly always insurmountable for the government, Barrett observed that even though the Texas law’s challengers had “left open the door to the possibility of [an age-gating law] satisfying strict scrutiny … you know, come on, fatal, in fact.”
The lawyer representing Texas and defending the age-gating law similarly invoked the “fatal in fact” truism as a reason for the Court not to impose strict scrutiny, remarking, “There’s a whole bunch of law on strict scrutiny, and a whole bunch of different judges across this country are going to apply it. There’s a bunch of cases that say fatal in fact. And we’re going to have a lot of [preliminary injunctions] and a lot of emergency litigation. That’s a problem.”
Which is more dangerous for the future of free speech: adjusting legal doctrines so that fewer laws are subject to strict scrutiny or adjusting strict scrutiny itself so that more laws can survive it? In my view, the more significant risks would come from holding laws like those at issue in TikTok and Free Speech Coalition to not even trigger strict scrutiny. The legal doctrines that determine which scrutiny to apply are intentionally general and wide-ranging so that courts can predictably adapt them to novel cases. Creatively interpreting these doctrines to exempt one law from strict scrutiny could cause unintended side effects that eventually result in a wide range of other laws escaping strict scrutiny review. (As I note today on the Cato Daily Podcast, a decision holding that TikTok has no right to collaborate with a foreign company could be used to justify a ban on American film companies collaborating with foreign effects studios.)
I think Justice Kagan had it right when she responded that Texas’s fears would be allayed if the Supreme Court “wrote the kind of opinion … [that] would say: This is the kind of strict scrutiny we’re talking about. This is what will pass it. You know, take us seriously.” Strict scrutiny recognizes that the Constitution is not a suicide pact: Even if a right has been violated, the government is still given the opportunity to argue that it had no other choice. On rare occasions, that will be true, and the government action will survive. And even if a court erroneously upholds a law under strict scrutiny, that is less likely to have wide-ranging precedential harm, because the application of strict scrutiny in any particular case is bound up in the particular facts of that case and less transferable to other cases.
As I’ve argued elsewhere, neither of the laws that the Supreme Court considered in the past week are constitutional. But if the Court wants to write opinions that set a road map for how other laws furthering similar goals might survive constitutional review, it should do so while reaffirming that strict scrutiny applies to such laws. Strict scrutiny acknowledges that a significant infringement of speech rights has occurred, and courts should not tie themselves in intellectual knots to argue away that infringement. It would be ironic if the misplaced fear that strict scrutiny is always “fatal in fact” led the Court to shy away from applying it when it is warranted.