When it comes to statutes curbing access to lawful sexual content—material that’s neither obscene nor child pornographic—the US Supreme Court sometimes bends its normal First Amendment rules of review in government-friendly, speech-restrictive ways. The rules are altered either to safeguard minors or to address concerns such as property values, crime, and community beauty. A recent decision illustrates this tendency, with older rulings adding context.

In June, the Court concluded in Free Speech Coalition v. Paxton that Texas doesn’t violate adults’ First Amendment rights by making them reveal their identities and ages to access non-obscene sexual content on pornographic websites. Shortly afterwards, I criticized the majority for not using strict scrutiny to test the statute’s validity. I suggested the Court’s conservative-leaning justices invented a workaround from the principle that content-based laws must pass strict scrutiny because they probably wanted to uphold the statute. Analyzing Texas’s indisputably content-based law under the more relaxed intermediate scrutiny test made it easier for the majority to do that. Cynically viewed, choosing intermediate scrutiny was a results-oriented decision that “handed Texas a popular win in protecting minors from online pornography.”

My AEI colleague Daniel Lyons concurs that “the Court’s decision . . . to apply the more forgiving intermediate scrutiny test is a departure from clear precedent and weakens First Amendment protections.” Adding that Justice Elena Kagan and her fellow dissenters were “correct that strict scrutiny applies,” Lyons contends that “watering down the standard of review weakens both the Court’s credibility and the First Amendment.”

What was the majority’s stated rationale for applying intermediate scrutiny? Justice Clarence Thomas reasoned that the sexual expression targeted by Texas’s age-verification law is only “partially” protected by the First Amendment. Adults have a constitutional right to view it—it’s not obscene under the test from Miller v. California—but it is nonetheless “harmful to minors” and unlawful for their eyes. It’s content amounting to variable obscenity: speech that’s obscene to minors but not to adults. For the majority, this meant the content should be easier to regulate than it would be under strict scrutiny, which Thomas called an “unforgiving” test “ill suited for such nuanced work.”

It isn’t, however, the first time the justices have rationalized dropping the level of scrutiny from strict to intermediate when analyzing a content-based regulation that restricts adults’ access to lawful sexual expression. Specifically, the Court has created a secondary effects doctrine that makes it easier to uphold—against First Amendment challenges—zoning laws that significantly limit where adult theaters and bookstores can be located.

At first glance, zoning ordinances that eliminate potential venues for businesses based on the predominate content of their speech products—whether a specified, significant percentage of the speech they convey is sexually explicit—appear content based and thus subject to strict scrutiny examination. More colloquially put, dirty-movie theaters are zoned differently from—and more harshly than—mainstream AMC and Cinemark cineplexes due to filmic content.

The secondary effects doctrine, however, provides a workaround from strict scrutiny that lets courts use intermediate scrutiny when analyzing zoning laws targeting adult-themed speech businesses. How so? Municipalities can simply claim their laws were not enacted because of the sexual content at adult theaters and bookstores but, instead, were adopted “to combat the undesirable secondary effects of such businesses.” These secondary effects include purported problems outside of adult-themed speech businesses (lower property values, increased crime, and deterioration of community aesthetics) and troubles inside them (lewd conduct and sexual disease transmission).

Reducing such negative secondary effects of adult-themed speech businesses, the Supreme Court has determined, constitute content-neutral justifications and substantial government interests for zoning that satisfy intermediate scrutiny. It’s an amazing feat of judicial jiu-jitsu, transforming content-based laws into content-neutral ones to pass constitutional muster. Municipalities even can rely on studies conducted by other communities—not their own—to demonstrate the existence of deleterious secondary effects under this relaxed analysis. About the only thing they cannot do is eliminate all possible sites for lawful, adult-themed speech businesses; they cannot be completely zoned away.

In 1978, the Supreme Court in Federal Communications Commission v. Pacifica Foundation also avoided strict scrutiny. There, it upheld the government’s power to punish over-the-air broadcasters for airing––during daytime hours when children are more likely to be listening or watching––sexually explicit speech that’s indecent but that does not rise to the level of unprotected obscenity. Never invoking the term “strict scrutiny,” the Court instead focused on how “broadcasting is uniquely accessible to children, even those too young to read” and how “indecent material presented over the airwaves confronts the citizen . . . in the privacy of the home.” These contextual factors, it explained, “amply justify special treatment of indecent broadcasting.” (Emphasis added.)

In sum, evading strict scrutiny to regulate lawful sexual expression is rather routine.