The U.S. Supreme Court has been asked to review a  decision by the 5th Circuit Court of Appeals upholding  a Texas law that requires all visitors to some websites to provide the site operator with evidence of their identity and age.

The Texas law applies to all visitors to any website “more than one-third of which is sexual material harmful to minors.” It doesn’t matter if you are an adult, none of the material on the site is obscene or illegal (“harmful to minors” doesn’t mean obscene or illegal for adults) , or you want to access portions of the site — perhaps the majority — that aren’t considered harmful to minors. You still have to identify yourself to the site operator by “digital identification,” “government-issued identification,” or “a commercially reasonable method that relies on public or private transactional data.”

The issue raised in the petition for certiorari (request for review by the Supreme Court) is the “standard of review” applicable to this law. That may seem like a technical issue, but it is likely to determine the outcome of this and many other cases.

In a long line of precedents from the Supreme Court, restrictions on the exercise of rights protected by the First Amendment have been subjected to what is called “strict scrutiny”. That means that, for such a law, regulation, or government practice to be upheld, the government must show that it is “narrowly tailored” to a legitimate government purpose, and that no less restrictive available alternative law or policy could fulfill that purpose.

In the case of the Texas ID-to-visit-websites law, two of the three judges of the 5th Circuit panel adopted a lower standard by finding that the state need only show that there is some “rational relationship” between the law and any legitimate government purpose, regardless of its collateral impact on adults, non-obscene content, or First Amendment rights. That creates a conflict with Supreme Court precedent and decisions in other Federal circuits.

Any precedent in this case could be applied to demands to provide ID as a prerequisite to the exercise of other rights protected by the First Amendment, not just freedom of speech and of the press.

To the extent that the freedom to travel is recognized — as we think it should be — as an aspect of the freedom to assemble, this precedent could be applied directly to ID requirements for travel, including travel by airline or other common carrier.

We hope the Supreme Court reviews and reverses this decision by the 5th Circuit.