Free Speech Coalition and least-bad option

A quick word on Free Speech Coalition, declaring valid Texas' porn-site age-verification law.

Everyone on the Court seems to agree the law is constitutionally valid. The six-justice majority believes the state has the power to enact such a law. And I am not sure the three dissenters disagree. They hedge, but they seem to believe Texas should be able to keep this material away from minors and that requiring adults to prove identity might be an acceptable burden, perhaps after some analysis about the efficacy of filters. Also, neither opinion mentions the right to anonymous speech--which has become more vigorous since Ginsberg--and which is undermined by demanding age verification.

It may be that the Court divided over choosing a "least-bad option" to reach this "law is (or at least may be) valid" conclusion. The majority treats a facially content-based law--one that burdens adult access to some content because of that content--as content-neutral (thus subject to intermediate scrutiny) through some circular gymnastics. The dissent seems a bit blase about the prospect that this law could survive strict scrutiny (when, as the majority points out, one law has survived strict scrutiny before the Court). So which is worse--"watering down" strict scrutiny so it is not as a "practical matter . . . fatal in fact absent truly extraordinary circumstances?" Or making it easier (by applying intermediate scrutiny) for government to burden access for one group to a lot of constitutionally protected speech by inventing a rationale around preventing or burdening access to a different group.

Expect two bad practical consequences from the decision. First, burdens on the porn industry, because compliance with the law is expensive, might cause sites to block access from certain states.Second, the over-inclusiveness of "harmful to minors" likely will limit access (for adults and minors) to important and constitutionally protected (having serious literary, artistic, political, or scientific value for minors) information about sex, sexual identity. Sites will put it behind a wall out of fear of government sanction, even if the speech is likely protected. Both consequences reflect the legislative goal. The majority used the "facial challenge" dodge to avoid adjudicating important questions about the law's scope and application; courts must answer these questions after enforcement efforts that may never come (because sites over-comply) or a wave of lawsuits by non-porn sites and users (adults and minors) seeking access to protected information that also may never come.