Let’s give credit where it is due. The current Supreme Court has a decent record on free speech issues. 

There have been some worrisome moves, such as the Court’s decision not to immediately reverse an appeals court decision that stripped activists of their right to organize street protests. But a bipartisan alliance of six justices have largely resisted efforts by states and the federal government to regulate speech.

Most significantly, in Moody v. Netchoice (2024) three Republican justices — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — joined the Court’s three Democrats in rejecting a Texas law that attempted to take control of content moderation at major social media sites like Facebook or YouTube. According to Texas Gov. Greg Abbott, the purpose of this unconstitutional law was to force these companies to publish “conservative viewpoints and ideas” that they did not want to publish.

Last June, however, the Supreme Court, in Free Speech Coalition v. Paxton, upheld a Texas law requiring pornographic websites to verify that their users are over age 18, effectively overruling Ashcroft v. ACLU, a 2004 Supreme Court decision that struck down a virtually identical federal law. 

The Court’s decision to uphold age-gating laws for porn sites is defensible. I wrote before oral arguments in Free Speech Coalition that some age-gating laws should be allowed, though I also said that Texas’s specific law should be struck down because it is not well-crafted to survive a First Amendment challenge. But the decision is also significant because it is a contraction of First Amendment rights. (The First Amendment has long been understood to protect both the right of speakers and artists to say what they want, and the right of consumers to receive books and other materials that the government might find objectionable.)

The fact that the Court was willing to shrink Americans’ free speech rights in Free Speech Coalition suggests that they may do so again in a future case. And a case asking the justices to do so is now before them.

NetChoice v. Fitch, which is currently on the Court’s “shadow docket,” concerns a Mississippi law that requires social media platforms to verify the ages of their users, and to require young people to obtain a parent or guardian’s permission before they can set up an account with one of these platforms.

Under existing Supreme Court precedents, this Mississippi law is clearly unconstitutional. In Brown v. Entertainment Merchants Association (2011), the Court struck down a similar California law that prohibited the sale of “violent video games” to minors (but permitted a child’s parent to buy the game for them).

As Justice Antonin Scalia wrote in Brown, a state’s power to “protect children from harm…does not include a free-floating power to restrict the ideas to which children may be exposed.” The Court held that speech “that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”

Nevertheless, the Court’s decision to abandon Ashcroft in its more recent porn case suggests that it could also abandon Brown and uphold Mississippi’s social media restrictions.

Fitch, in other words, is worth watching closely, not necessarily because the justices are likely to roll back First Amendment rights even further, but more so because it is the first significant First Amendment case to reach the Court since Free Speech Coalition. And the new case raises a similar question about whether children and teenagers still enjoy robust free speech rights.

The Court’s decision in Fitch could reveal whether Free Speech Coalition was the first phase of a broader attack on free speech, or whether the Court’s recent pornography decision should be read as a one-off that applies solely to porn.

Mississippi’s social media law, briefly explained

The law at issue in Fitch is quite vague. The law requires social media platforms to make “commercially reasonable efforts” to determine the age of anyone trying to create an account. It prohibits these platforms from allowing someone “who is a known minor to be an account holder unless the known minor has the express consent from a parent or guardian.” And it requires these sites to “develop and implement a strategy” to shield minors from topics such as suicide, bullying, or “illegal activity.”

It’s also far from clear that the Mississippi law will actually succeed in preventing any children or teenagers from setting up a social media account. The law lists several ways that social media companies may determine if a parent consented to their child using the company’s service, including “providing a form for the minor’s parent or guardian to sign and return to the digital service provider by common carrier, facsimile, or electronic scan.”

Realistically, nothing prevents a child who wants to set up a YouTube account from printing out this form, forging their parent’s signature, and then creating the account. It’s not at all clear how social media platforms are supposed to determine who actually signed this form.

Still, the Mississippi law, at least, purports to ban social media companies from giving accounts to children without their parents’ consent. The primary issue before the Supreme Court in Fitch is whether the First Amendment permits a state to impose such a barrier between young people and some of the primary platforms people use to communicate in 2025.

Again, this isn’t a particularly difficult question under Brown. Brown held that California’s law restricting video game sales to minors is subject to “strict scrutiny,” the toughest legal test that courts apply in constitutional cases. The overwhelming majority of laws subject to this test are struck down.

In Free Speech Coalition, however, the Court ruled that a more permissive test, known as “intermediate scrutiny,” applies to laws seeking to prevent children from accessing speech that is “obscene only to minors” — here, the term “obscene” refers to sexual content that lacks “serious literary, artistic, political, or scientific value.” 

Under intermediate scrutiny, the Court said in Free Speech Coalition, “a law will survive review ‘if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.’”

In its brief to the justices, Mississippi says that its law was enacted to shield young people from potentially harmful sexual speech. Specifically, it claims that the law was inspired by the tragic death of a 16-year-old boy, who died by suicide after someone he met online recorded him engaging in sexual activity and then threatened to send that recording to his family.

But even if you assume Mississippi’s law should only be subject to intermediate scrutiny, it’s hard to see how this law could possibly survive that test. As the plaintiff in Fitch, NetChoice — a trade group representing many major tech companies — argues in its brief, Mississippi’s law sweeps far broader than one that simply targets online sexual predators. Under the state law, the plaintiffs’ lawyers argue, young people would have to obtain their parents’ permission before “‘discussing their faith in religious forums,’ ‘petition[ing] their elected representatives’ on X, ‘shar[ing] vacation photos’ on Facebook, looking for work around the neighborhood on Nextdoor, or learning how to solve math problems on YouTube.” 

The law, in other words, burdens substantially more speech than necessary to further the state’s goal of stopping online sexual predators. It’s as if a single teenager choked to death on a hamburger, and the state responded by banning McDonald’s.

The Court could potentially delay deciding this case, but the issue isn’t going away

There is a procedural issue lurking in Fitch that the justices could latch onto if they want to delay resolution of this case. Mississippi claims that a trial judge erred by declaring the state’s law unconstitutional on its face, meaning that there is no set of circumstances when the law may constitutionally be enforced, when the proper course was for the judge to issue a more limited order holding the law unconstitutional “as applied” to NetChoice and its members.

If you care to learn more about this distinction between facial and as-applied challenges to laws, I explain it here. The most important thing to understand, however, is that this procedural issue could delay resolution of the Fitch case — but it can’t put it off forever. Eventually, NetChoice’s lawyers will figure out how they have to frame their lawsuit for it to move forward, and the courts will need to decide if Mississippi’s law can constitutionally be applied to the major social media platforms.

And there are a ton of hugely important First Amendment questions lurking in this case. After Free Speech Coalition, are all laws that purport to protect minors from sexual speech only subject to intermediate scrutiny, even if they are as overbroad as Mississippi’s? Was Free Speech Coalition solely about pornography, or does it extend to other speech that the government thinks may be harmful to minors? What about non-sexual speech, like the violent video games at issue in Brown? Does strict scrutiny still apply to laws regulating speech and art that isn’t about sex?

And then there’s the biggest question looming over every free speech case that reaches this Supreme Court. 

For most of American history, the Supreme Court largely ignored the First Amendment’s free speech protections. In Debs v. United States (1919), for example, the Court upheld a 10-year sentence imposed on a politician who gave a speech opposing the military draft during World War I. The government routinely prosecuted people who sold books or other works of art with sexual themes, including famous works of nude art. 

Then, in the later half of the 20th century, the Supreme Court started taking free speech seriously, giving a great deal of protection not just to political speech, but also to erotica, pornography, and other forms of sexual speech.

This libertarian approach to free speech, which has animated the Supreme Court’s First Amendment decisions since the 1960s, is now out of favor with much of the Republican Party. Last year’s Moody case, for example, arose out of Texas and Florida laws which attempted to seize control of content moderation at social media platforms. President Donald Trump routinely attempts to punish his perceived enemies for ordinary political speech — one of his many executive orders targeting law firms, for example, singled out a firm because of its representation of Trump’s opponent in the 2016 election. The Trump administration arrests grad students for speaking in favor of Palestine.

Now, both the Texas law at issue in Free Speech Coalition and the Mississippi law at issue in Fitch are signs that many state lawmakers want more leeway to regulate sexual content online.

For the most part, however, the six-justice coalition of Roberts, Kavanaugh, Barrett, and the three Democratic justices have held the line on the modern, libertarian approach to free speech. The Court’s decision in Fitch could tell us a great deal about whether this line will continue to hold.