Mahmoud v. Taylor and Free Speech Coalition, Inc. v. Paxton: First Amendment in 2025

Klare reviews the 2025 Supreme Court Cases, Mahmoud v. Taylor and Free Speach Coalition, Inc v. Paxton, the free exercise clause, freedom of speech, and standards of judicial review. 

Episode Transcript

(00:02):
Welcome to Case by Case, a legal podcast.
Keep in mind, the contents of thispodcast should not be taken as legal
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Case by case is meant foreducational purposes only.
Enjoy.

(00:23):
Hi there, I'm Claire and this isCase by Case, a legal podcast.
Today I'm flying solo.
We're trying to go through allthese, uh, US Supreme Court opinions
issued here in the summer of 2025.
And today I'm covering two differentcases that concern the First Amendment.
The first one concerns our freeexercise of religion, and then the

(00:43):
second one concerns, uh, free speech.
So let's get into it.
Today we're reviewingthe case Mahmud v Taylor.
This case concerns our firstamendment rights, uh, specifically
the free exercise of religion andhow that interacts with education

(01:05):
through the public school system.
So I think the best way to approachthis case is to start with the facts.
So this concerns the Montgomery CountyBoard of Education out of Maryland,
and in November, 2022, the school boardissued a list of approved L-G-B-T-Q
inclusive children's books, and theystarted with one book for each year.

(01:30):
So from, uh, pre-K through fifth grade.
And the teachers at the school districtwere not required to use any of these
materials, but the school board offeredsome options for them should they choose
to read these books to their kids.
Initially the policy was the teacherwould notify parents if they were

(01:51):
going to read this book, and thenthe parents could, uh, choose to
opt their child out of that lesson.
So some people were using it forreligious, uh, reasons, wanting
to opt their chi children out.
Um, but there was, there's a varietyof reasons that changed in 2023.
And the school districtsaid, you know what?
You can't opt out for any reasons now.

(02:14):
And this is where we'restarting to get some problems.
So three sets of parents decidedto sue, um, the superintendent
whose last name is Taylor.
So that's how we get Mahmud versus Taylor.
And the religions of theseparents come into play.
So that's why I'm gonnareference them here.
Uh, a set of plaintiffs, I thinkthey were a couple, they were Muslim

(02:36):
additional plaintiffs, uh, wereRoman Catholic, and then I think
two plaintiffs were Roman Catholic.
And then there were someplaintiffs that joined the suit
that were Ukrainian Orthodox.
And there's a list of books online ifyou're interested in looking it up.
Uh, but what they werebasically arguing is.

(02:57):
Reading these types of books to theirkids, violated their first amendment
and their free exercise of religionbecause the lessons taught in these
books conflicted with their religion.
So first they started off in, uh, federalcourt, the US District Court of Maryland.
So that's our lowest court of,um, the federal judicial system.

(03:18):
And the court at the federaldistrict level said, well, exposing
your kids to a different type ofthinking isn't necessarily stepping
on your freedom of religion.
You're not being forced tolive your life this way.
Um, and you're not being forced tocompromise how you practice your religion.
It's just exposing kids to, in this case,the L-G-B-T-Q, um, themes in a book.

(03:44):
It then got appealed up to, uh, theappellate court in the fourth Circuit,
and they basically said the same thing.
Uh, there's a quote from Judge Aggie,uh, who wrote this opinion, and he
said, simply hearing about other viewsis not necessarily exert pressure
to believe or act differently thanone's religious faith requires.

(04:05):
So the plaintiffs here referencetwo different historic cases.
The first one is, um, Wisconsin verseYoder, and this case is from 1972,
and it deals with an Amish family.
And Amish families were taking theirkids out of school after the eighth
grade, and the parents said this,uh, infringes on our first amendment

(04:29):
because we wish to remove them fromthings that they're being taught in high
school, uh, about gender, sexuality.
Maybe they're being taught to.
Not question religious beliefs,but they're being introduced
to other religious beliefs.
They also reference another case from1988 called Ling Verse, Northwest

(04:50):
Indian Cemetery Protect Association.
And in that case, the US government wastrying to disrupt some sacred land, um,
land that was sacred to Native Americans.
Um, and they said the governmentcannot coerce individuals into acting
contrary to their religious beliefs.
So from this appellate court, itthen gets appealed once more, and

(05:14):
now we're in the US Supreme Court.
The, they heard oral arguments inApril, and I believe this was issued,
this opinion was issued June 27th,2025, and Justice Alito wrote the
majority here, and they basicallyoverturned what the district court

(05:35):
and that federal appellate court said.
And they said we have to applythe principle from that Wisconsin
verse, Yoder case, that Amish case.
And this is the standard.
Um, the government can'tsubstantially interfere with religious
development of til children byplacing them in environments that
are hostile to their religiousbeliefs with pressure to conform.

(05:57):
So they were saying these storybooks,uh, present normative messages about
same-sex marriage, gender identity, andthese things conflict with the religious
teachings that those, uh, childrenfollowed or that their parents followed.
Now, it's also important to notehere we're gonna talk about strict
scrutiny again for a little bit.

(06:18):
And if you remember from our Smetcase, we applied strict scrutiny.
In the context of the equal protectionclause of the 14th Amendment, and
that's our highest standard of judicialreview, especially when it comes to
the equal protection clause, but alsowhen it comes to fundamental rights.
So our First Amendment rights,those are fundamental to us.

(06:39):
The government has to passthe strict scrutiny standard.
So in this case, it was up to theMontgomery County Public Schools of
Maryland to show that there were.
Really important need to have thesebooks in class and that they were issuing
these books and these guidelines on anarrowly tailored basis so that they

(07:01):
weren't, they were doing their best notto infringe on people's fundamental, in
this case, uh, first Amendment rights, themajority says no, it doesn't, it doesn't
pass that strict scrutiny standard.
In the dissent we have, um, justiceSotomayor offering our dissenting

(07:21):
opinion, and she's joined byJustice Kagan and Justice Jackson.
Um, so this is kind of aconservative liberal justice
split, the six, uh, conservatives.
Voted in favor of the plaintiffs.
And the three liberal justices votedin favor of the school district.
And they kind of echoed what the districtcourt and the appellate court said.

(07:43):
And they said, you know, mereexposure does not constitute
a free exercise violation.
And they said, if we allow parents toopt out of these lessons, it's gonna be a
logistical nightmare for public schools.

(08:05):
So what do we take from this case?
If public schools are reading or exposingkids to books that may conflict with
the child's religion, the parentscan opt that child out of the lesson.
So it's not banning books necessarily,but it's allowing parents to pull
those kids out of, uh, in this case,I imagine it would be like a reading

(08:29):
time because these are younger kids.
So, yeah, that was Mahmud v Taylor.
That was our first, uh, swingat First Amendment laws.
Um, first Amendment of course covers ourfreedom of speech, freedom of religion,
freedom of association, but it seems easyon the surface, but it's not an absolute
right, these First Amendment rights, uh,and they can get a little complicated.

(08:52):
So we'll see how this unfolds.
I know there's a lot of discussionaround book bands and this topic
is kind of adjacent to that.
So.
We'll see if it, uh, if itinfluences that, uh, along the way.
But yeah, so again, that was my moodverse Taylor issued here in 2025.

(09:18):
The next one is Free SpeechCoalition verse Paxton, and this
deals with internet pornography.
You know, it's interesting when wetalk about pornography, a lot of this
discussion actually falls under the FirstAmendment and our freedom of speech.
Now, most speech in the United Statesis protected with a few exceptions.
So anything that causes immediateviolence that is not protected,

(09:42):
uh, immediate being the key word.
So if I shout fire in a movie theater andit causes a stampede that's not protected.
If I say, you know what?
You're making me mad.
Next time you do that, I'm gonna punchyou right in the face that is protected
'cause I'm saying further down the line.
Uh, so again, speech that causes immediateviolence or danger that is not protected.

(10:06):
Another thing that is notprotected is obscenity.
So what is obscene?
Well, age old question.
Um.
We ultimately end up going off of a casefrom 1973 called Miller Burst, California,
and from there we get the Miller test.
So what is the Miller test?

(10:28):
Well, the Miller test looks ata body of work and it kind of
gives you three different prongs.
The first one, you look at the workas a whole and you think if this is
judged by an average person, is this.
Shameful or morbid.
The second one is patently offensive.

(10:51):
Is this work quote, patently offensive?
Uh, and that's typicallydefined by any state laws.
Um, and it also isdefined by the location.
Where, where are you observing this?
Body of work if, if you're in Vegas, youmight view a peep show as not obscene.

(11:13):
If you're in Macon, Georgia, youmight think a peep show as obscene.
And then the third prong is, does the workhave any serious value it, is it literary?
Is it artistic?
Is it parli political?
Is it scientific?
Romeo And Juliet has a sex scene in itthat would, that obviously has some value.

(11:35):
So that might not be viewed as obs.
So that's our Miller test.
Uh, in the last two year legislaturesacross the states have been trying
to enact some kind of safety net forminors viewing content on the internet.
So this case regards a Texas law.
And the attorney Generalof Texas is Paxton.

(11:56):
That's where we get the name of this case.
And the law we're talking about, uh,is House Bill 1181 and it requires
age verification if someone is viewingcontent with more than a third of
its content being harmful to minors.
And that's the exact language.

(12:16):
So a third of the contentharmful to minors seems.
I don't know, I guesssubjective or relative.
Uh, and so through the Free SpeechCoalition, uh, some pornography and film
industry people sue to challenge the law.
And there's actually 23 states,uh, in the country that have

(12:38):
signed laws similar to this.
So first this goes to a district court,so federal district court, and they
struck down the provision saying thatit infringes on that first amendment.
Then it got appealed up to the FifthCircuit and they reversed the ruling and
upheld that age verification requirement.
I'm guessing it's like you go to thewebsite, you have to type in your

(13:01):
birthday, and then they let you in.
So why did the district courtallow for this provision and the
circuit court strike it down?
Well, they were usingdifferent standards of review.
So earlier when we talked aboutthe Mahmud verse Taylor case, we
applied a strict scrutiny standard.
When we were talking about the Smetcase, we applied a a rational basis test.

(13:22):
And here the district court.
So the first round of, uh, litigation,the district court used a strict
scrutiny standard to evaluate thelaw, and that's probably because it
was doing with our first amendment.
So our fundamental rights getthat strict scrutiny standard.
It's a higher standard of law.
The fifth circuit, this appellate court,they applied below a standard of review,

(13:46):
that rational basis review, and it looksmore on what was the purpose of this law
and less so on the rights of the people.
So our plaintiff's appeal once more.
Now we're in the US Supreme Court.
It's a six three split orconservative justices are writing for.
The majority our liberal justices arevoting for, are writing for the dissent.

(14:10):
And there's even a splitamongst this, uh, majority.
So Alito, he thinks that we shouldapply this rational basis standard,
that lowest level of review.
The rest of these, uh, majorityjustices think we should
apply intermediate scrutiny.
Justice Thomas authored the opinion, sohe wrote for the majority, and here they

(14:32):
apply that intermediate scrutiny standard,which is interesting 'cause the district
court applied strict scrutiny, the.
Appellate court applied rationalbasis test, and now we're at
the Supreme Court and they said,actually, it's neither one of those.
It's this intermediate scrutiny standard.
So the standard that's in themiddle, if you remember our ski meti
conversation, rational basis is theeasiest one for the government to clear.

(14:53):
Then intermediate strict screeningis the hardest, and they said under
intermediate screening standard.
This law passes because it's onlyan incidental burden on adult perspe
protected speech while serving a reallyimportant government interest, which is
shielding children from harmful content.

(15:16):
The Supreme Court also points out thatnot every website has to verify a user's
age, and it's really just websites thathave over one third of their content as
quote, sexual material harmful to minors.
Now, I don't really know what that means.
I'm assuming there's going to be moreongoing legislation or discussion about
making that language more specific.

(15:36):
But, uh, the SupremeCourt says it doesn't.
Require every single websitethat has something to do with
sex to have this verification.
So as a reminder that intermediatescrutiny test the laws must advance
important governmental interests,unrelated to suppressing a fundamental

(15:57):
right in this case, free speechwithout burdening substantially
more speech than necessary.
And they said, this is hittingthe nail right on the head.
This law.
I guess I should have said thisat the top when we talked about
free speech and speech that is notprotected, I referenced two things.
I referenced violent speech that causedit, imminent danger and imminent violence.

(16:21):
I also talked about obscenity.
It's also important to note thatchild pornography is never protected.
Uh, you can't possess it.
You can't sell it, youcan't distribute it.
It is never protected Underour First Amendment speech.
It is never protectedunder the First Amendment.
So on the dissent side, we haveJustice Kagan writing for the dissent.

(16:42):
And the dissent is saying thislaw should be struck down because
the district court got it right.
We should be applyingstrict scrutiny standard.
It should be the highestlevel of scrutiny.
Um, and they said this lawdirectly burdens an adult
access to protected speech.
And they're saying that mostlikely because it's a fundamental

(17:03):
right, our First Amendment rights.
So that was Free Speech Coalition, Inc.
V Paxton.
It's gonna be interesting to see howthe adult film industry responds to
this, and I think there's gonna be morediscussion with state legislative bodies.
It's also gonna be interestingto see how this unfolds with
other free speech conversations.

(17:25):
Uh.
A lot of other things are protected.
Speech, for instance,hate speech is protected.
Um, so it'll be interesting to seewhat comes outta this intermediate
scrutiny for adult content.
Yes.
All right, well thanks for listeningand we'll keep trucking through these.

(17:47):
US Supreme Court decisions of 2025.
Thanks for listening.
Bye.
So that first case was Maers Taylor, andin that case, the US Supreme Court applied
a strict scrutiny standard and foundthat public schools cannot substantially
interfere with a parent's ability to guidetheir children's religious development.

(18:08):
So when applied to this case, the USSupreme Court said that parents can opt
their children outta certain lessons atschool that goes against their religion.
The second case we covered was FreeSpeech Coalition, Inc. V Paxton, and
in this case, the US Supreme Courtweighed an adult freedom of speech, in
other words, accessing adult contenton the internet and weighed against

(18:31):
the important government interests ofshielding kids from obscene content.
In this case, the US Supreme Courtapplied intermediate scrutiny standards.
To adult content and they found that itis constitutional to make minors verify
their age before entering certain sites.
It'll be interesting to see howboth of these opinions play out

(18:52):
in the First Amendment space.
If you have any questions, comments,concerns or corrections, email
us [e-mail].
Thank you so much for listening.
Bye.