The U.S. Supreme Court has upheld Texas’s law requiring age verification for access to online pornography, ruling that the statute is a constitutionally permissible means of protecting minors from sexually explicit content.

The case, Free Speech Coalition, Inc. v. Paxton, centered on Texas House Bill 1181, enacted in 2023. The law mandates that commercial websites publishing sexually explicit material deemed “obscene to minors” must verify that visitors are at least 18 years old, using government-issued identification or other approved methods. Violators face injunctions and significant civil penalties, including up to $10,000 per day and additional fines if minors access restricted content.

Similar age-verification laws have been adopted in at least 21 other states.

Representatives of the adult entertainment industry, joined by a trade association and a performer, challenged the law as facially unconstitutional under the First Amendment. They argued that while states have a compelling interest in shielding minors from harmful material, the statute unduly burdens adults’ rights to access protected speech by imposing intrusive verification requirements.

A federal district court initially agreed, issuing a preliminary injunction and finding that the law was subject to strict scrutiny and was not narrowly tailored to achieve its aims. However, the Fifth Circuit Court of Appeals reversed, holding that the law was subject only to rational-basis review because it regulated unprotected speech as it pertains to minors.

In a 6-3 decision authored by Justice Clarence Thomas, the Supreme Court affirmed the Fifth Circuit but clarified the applicable standard. The Court held that the law triggers “intermediate scrutiny,” not strict scrutiny or mere rational-basis review. The majority reasoned that while the law does incidentally burden adults’ access to protected speech, it does so as part of the state’s longstanding authority to prevent minors from accessing material that is obscene from their perspective.

The Court found that requiring proof of age is a traditional and appropriate means of enforcing age-based restrictions, analogous to requirements for purchasing alcohol, tobacco, or firearms. The majority emphasized that adults have no First Amendment right to access such material without submitting to age verification, and any burden imposed is incidental to the state’s legitimate regulatory goal.

Applying intermediate scrutiny, the Court concluded that H.B. 1181 “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests”. The law was found to be adequately tailored, as it allows for established methods of age verification already used in other age-restricted industries and by some adult websites.

The Court rejected arguments that Texas must adopt the least restrictive means, such as relying solely on parental controls or content filters, noting that intermediate scrutiny does not require such measures.

Justice Elena Kagan, joined by Justices Sotomayor and Jackson, dissented. The dissent argued that the law imposes a direct, content-based burden on adults’ access to constitutionally protected speech and should be subject to strict scrutiny, as the Court has previously held in similar cases involving sexually explicit material and minors.

Justice Kagan argues that, under established Supreme Court precedent, any law that burdens protected speech based on its content—such as Texas’s age verification requirement—must face strict scrutiny. She cites a line of cases (Sable Communications, Reno v. ACLU, Playboy Entertainment Group, and Ashcroft v. ACLU) where the Court consistently applied strict scrutiny to similar laws intended to shield minors from sexually explicit material but which also affected adults’ access to lawful content.

The dissent emphasizes that while states have a compelling interest in protecting children from harmful material, adults retain a constitutional right to access sexually explicit content that is not obscene for adults. The Texas law, by requiring adults to submit identification to access such material, imposes a direct burden on this right. Kagan notes that such requirements can deter adults from accessing lawful speech due to privacy concerns and the stigma associated with consuming adult content.

While acknowledging the internet’s evolution, Kagan insists that technological advances do not diminish the need for robust First Amendment protection. She argues that the Court’s precedents remain applicable despite changes in how people access information online.