Justice Elena Kagan submitted a dissenting viewpoint that was signed up with by Sonia Sotomayor and Ketanji Brown Jackson. Kagan stated that in comparable cases, the court used stringent analysis, “a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content.”

“Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so,” Kagan composed. “That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny.”

The Texas law uses to sites in which more than one-third of the material “is sexual material harmful to minors.” Kagan explained the law’s ID requirement as a deterrent to working out one’s First Amendment rights.

“It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to… who knows? The operator might sell the information; the operator might be hacked or subpoenaed,” Kagan’s dissent stated. The law needs site users to validate their ages by sending “a ‘government-issued identification’ like a driver’s license or ‘transactional data’ associated with things like a job or mortgage,” Kagan composed.

Restricting say goodbye to speech than essential

Under rigorous examination, the court needs to ask whether the law is “the least restrictive means of achieving a compelling state interest,” Kagan composed. A state dealing with that requirement should reveal it has actually restricted no more adult speech than is essential to attain its objective.

“Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to),” Kagan composed.

The bulk choice stated that using stringent examination “would call into question all age-verification requirements, even longstanding in-person requirements.” It likewise stated the previous judgments mentioned in the dissent “all involved laws that banned both minors and adults from accessing speech that was at most obscene only to minors. The Court has never before considered whether the more modest burden of an age-verification requirement triggers strict scrutiny.”