Tag: Newly

  • Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

    Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

    In Free Speech Coalition v. Paxton, the U.S. Supreme Court broke new ground in applying relaxed First Amendment scrutiny to state-imposed burdens on lawful adult access to obscene-for-minors content. The decision appeared outcome-driven to uphold laws that require websites with specified amounts of sexually explicit material to verify users’ ages. However, the Court indicated the holding applies only “to the extent the State seeks only to verify age,” such that, if handled in a principled manner, FSC v. Paxton should have relevance only for speech to which minors’ access may be constitutionally restricted.

    FSC v. Paxton involved Texas HB 1181’s mandate that online services use “reasonable age verification methods” to ensure those granted access are adults if more than a third of the site’s content is “sexual material harmful to minors,” which the Court treated as content First Amendment law defines as “obscene for minors.” If an adult site knowingly fails to age-verify, Texas’ attorney general may recover civil penalties of up to $10,000 per day, and $250,000 if a minor actually accesses pornographic content. HB 1811 is one of over 20 state adult-content age-verification laws recently passed or enacted.

    Obscenity is among the few categories of speech the First Amendment doesn’t protect. In 1973’s Miller v. California, the Court defined obscenity as speech that (1) taken as a whole appeals primarily to a “prurient interest” in sex (i.e., morbid, unhealthy fixation with it); (2) depicts or describes sexual or excretory conduct in ways patently offensive under contemporary community standards; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court has limited the test’s scope to what it calls “hardcore pornography.” Material that is “obscene for minors” is that which satisfies the Miller test as adjusted to minors. Sexually explicit material can thus be obscene for minors but fully protected for adults.

    Under these tests, the government may ban obscene speech and restrict access by those under 18 to speech that is “obscene for minors,” but it cannot cut off adults’ access to non-obscene sexual material.

    It’s long been accepted that, to access adult, potentially obscene-for-minors material in the physical world, showing identification to prove age may be required. So, a law requiring ID to access such content online might seem analogous on its face.

    But online age-verification imposes risks physical ID checks do not. An adult bookstore clerk doesn’t save a photocopy of your license or track the content you access. Nor will hackers, therefore, try to access the ID. These are just some of the reasons surveys consistently show a majority of Americans do not want to provide ID to access online speech — whether adult material or other content, like social media.

    Texas’ HB 1181 is similar to two federal statutes the Supreme Court invalidated around the turn of the millennium. In 1997, the Court in Reno v. ACLU unanimously struck down portions of the Communications Decency Act that criminalized transmitting “obscene or indecent” content. And in 2002’s Ashcroft v. ACLU, it considered whether the Child Online Protection Act violated the First Amendment in seeking to prevent children’s access to “material harmful to minors” in a way that incorporated age verification.

    For decades, the Court has held statutes that regulate speech based on its content must withstand judicial review under strict scrutiny, which requires the government to demonstrate that the law is necessary to serve a compelling government interest and is narrowly tailored to achieve it using the “least restrictive means.” For laws restricting access to online speech, the Court held the laws in Reno and Ashcroft unconstitutional because they failed strict scrutiny. These cases followed in the footsteps of Sable Communications vs. FCC (1989) and United States v. Playboy (2000), in which the Court applied strict scrutiny to invalidate laws governing adult material transmitted by phone and on cable television stations, respectively.

    But in FSC v. Paxton, the Court subjected Texas’ age-verification law for online adult content to only intermediate scrutiny. Under this standard of review, a speech regulation survives if it addresses an important government interest unrelated to suppression of speech, directly advances that interest in a direct and material way, and does not burden substantially more speech than necessary. The Court justified applying a lower level of scrutiny on the ground that minors have no First Amendment right to access speech that is obscene to them. Accordingly, it reasoned, even if adults have the right to access “obscene for minors” material, it is “not fully protected speech.” From there, the Court concluded that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” And it upheld the Texas law under intermediate scrutiny, concluding the regulations only incidentally restrict speech that can be accessed by adults.

    The upshot is, going forward, it will be easier to justify laws restricting minors’ access to off-limits expression even if the law burdens adults’ access to material that is otherwise lawful for them.

    At the same time, the majority opinion sought to limit the type of content that can be restricted only to material that meets the legal definition of “obscene-for-minors” material, and not anything that might be considered generally inappropriate.

    As the Court held in Brown v. Entertainment Merchants Assn. (2011), “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” And in Reno, which involved similar attempts to limit provision of online content to minors, the Court held the government could not ban “patently offensive” and “indecent” (but not obscene) material for everyone in the name of protecting children.

    Free Speech Coalition should not be read as approving age verification laws for online speech generally that do not specifically target “obscene for minors” material. Its narrow focus will not support the recent spate of social media age-verification laws that have met significant judicial disapproval. Such laws have been enjoined in Arkansas, Mississippi, California, Utah, Texas, Ohio, Indiana, Florida, and most recently last week, when a federal court held Georgia’s version “highly likely [to] be unconstitutional” because it interferes with minors’ rights “to engage in protected speech activities.”

    Thus, properly understood, FSC v. Paxton should have limited implications — including that it shouldn’t extend to general age-verification laws in the social media context.

    The risk, of course, is that governments will seek to leverage FSC v. Paxton decision beyond its limited holding, and/or that lower courts will misuse it, to justify prohibiting or regulating protected speech other than that obscene as to minors. In defending laws that implicate the First Amendment, the government often argues it is regulating only conduct, or unprotected speech, or speech “incidental” to criminal conduct.

    Courts for the most part have seen through these attempts at evasion, and where a speech regulation applies based on topic discussed or idea or message expressed, or cannot be justified without reference to its function or content, courts apply strict scrutiny. Under FSC, however, would-be regulators have another label they can use — “partially protected speech” — and the hope that invoking it will lead to intermediate scrutiny.

    Only time will tell if the Court will keep the starch in its First Amendment standards notwithstanding what should be the purple cow of FSC v. Paxton.

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  • Newly Updated CUPA-HR Data Shed Light on Trends in Representation and Pay Equity in the Higher Ed Workforce – CUPA-HR

    Newly Updated CUPA-HR Data Shed Light on Trends in Representation and Pay Equity in the Higher Ed Workforce – CUPA-HR

    by Julie Burrell | January 22, 2024

    Progress in both representation and equitable pay for women and people of color remained sluggish in most roles on college and university campuses in academic year 2022-23, according to the newest data. Through several interactive graphics representing years of research, CUPA-HR highlights the progress that has been made and the disparities that persist. The data track gender and racial composition as well as pay of administrative, faculty, professional, and staff roles, collected from CUPA-HR’s signature surveys.

    While the representation of women and people of color across all roles has steadily increased, inequity remains, especially when it comes to compensation for women and people of color. However, there were some notable areas of progress when it comes to compensation. Asian women and men of color (except for Native American/Alaskan Native men) in administrative roles saw better pay equity than most other groups.

    Administrators

    The share of racial and ethnic minorities in administrative roles continued to grow over the past decade, but gaps in both representation and pay remained steady. This is especially true for women of color, who represented less than 11% of these roles and, for the most part, received lower salaries than White men.

    In 2022-23, people of color made up 18.7% of administrators, up from 12.9% in 2011-12. Although the proportion of people of color in higher ed administrator positions grew steadily over the last decade, these increases have not kept pace with the rate at which minorities are obtaining graduate degrees.

    No improvement was shown in pay disparities for most women administrators. All female administrators except for Asian women received lower salaries than White men. Conversely, men of color, except for Native American/Alaskan Native men, were paid salaries greater than those of White men.

    The Administrators in Higher Education Survey collects data on administrator positions that manage a higher ed institution or a division within it.

    See the Administrators Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics, as well as data broken out by CEO, provost and chief HR officer.

    Faculty

    There are two notable findings regarding faculty composition. First, more women faculty were represented in non-tenure-track roles than in tenure-track roles in 2022-23. Second, with each increase in rank, the proportions of women faculty and faculty of color decreased for both tenure-track and non-tenure-track faculty. Taken together, this means that women were over-represented in the lowest-paying and lowest-ranking positions.

    Pay gaps within rank persist, particularly for women faculty at the professor level, regardless of tenure status. These gaps are most notable for female professors of color in non-tenure-track positions. Pay gaps for assistant and associate professors have narrowed over time, particularly for tenure-track faculty.

    The factor that most impacts faculty pay is promotion to a higher rank, which is often the only time faculty receive significant increases in salary. When there is bias in promoting women and faculty of color to successive ranks, as our data continued to show, this results in career earnings gaps that far exceed what is often detected in pay equity studies within rank for a given year.

    The Faculty in Higher Education Survey collects data on tenure-track faculty positions and non-tenure-track teaching faculty positions.

    See the Faculty Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Professionals

    In academic year 2022-23, women of all races and ethnicities were paid less than their male counterparts in professional roles, while women’s representation increased from 58% to 61% across all professional positions since 2016-17. The growth is due to slight increases in the representation of women of color, from 13.1% in 2016-17 to 15.7% in 2022-23.

    Representation by gender and race/ethnicity varied widely by position. Human resources had the greatest share of women professionals, with 82% being women, including 28% women of color. Information technology had the lowest percentage of professional women (27%), and librarians and development/fundraising professionals had the lowest representation of professionals of color (14%).

    While pay was more equitable for most groups (apart from Hispanic/Latina women and men of two or more races), pay disparities persisted. Women of all races and ethnicities were paid less than their male counterparts. In addition, Hispanic/Latino men, Native Hawaiian men, and men of two or more races were paid less than White men.

    The Professionals in Higher Education Survey collects data on positions in specific functional areas in higher ed institutions, such as academic or student services, that usually require a baccalaureate degree.

    See the Professionals Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Staff

    Staff roles continued to have a higher representation of people of color than any other higher ed employee group last year. Staff also continued to be the lowest-paying positions in higher ed, with women particularly hard hit by pay disparities.

    In 2022-23, women of color represented about 19% of all higher ed staff, and men of color represent about 13% of all higher ed staff — a modest increase since 2016-17. Skilled craft employees were the least racially diverse, a finding that has persisted across the past six years. Notably, skilled craft staff are among the highest-paid staff positions.

    Since 2016-17, women were paid consistently and considerably less than White men. Pay equity for American Indian/Alaska Native women, Asian women, and Native Hawaiian/Other Pacific Islander women was better in 2022-23 than in 2016-17. Pay equity was the same or worse in 2022-23 than in 2016-17 for Black women, Hispanic/Latina women, women of two or more races, and White women. Men of color fared considerably better than women of color when it came to pay equity.

    The Staff in Higher Education Survey collects data on positions that are generally non-exempt and do not require a college degree.

    See the Staff Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    CUPA-HR Research

    CUPA-HR is the recognized authority on compensation surveys for higher education, with its workforce surveys designed by higher ed HR professionals for higher ed HR professionals and other campus leaders.



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