Free Speech Coalition, Inc. v. Paxton
606 U. S. ____ (2025) (2025)
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Rule of Law:
A state law requiring age verification for commercial websites publishing sexually explicit content that is obscene to minors triggers intermediate scrutiny because it incidentally burdens adults' First Amendment right to access such speech, and survives if it advances important governmental interests unrelated to speech suppression and does not burden substantially more speech than necessary to further those interests.
Facts:
- Texas, like many states, prohibits the distribution of sexually explicit content to children.
- In 2023, Texas enacted H.B. 1181 to address concerns that the internet makes “hard-core pornographic content and videos” too accessible to minors, leading to harmful developmental effects and risky behaviors.
- H.B. 1181 requires any commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, where more than one-third of the content is “sexual material harmful to minors,” to use reasonable age verification methods for visitors.
- “Sexual material harmful to minors” is defined as content that appeals to the prurient interest of minors, depicts sex acts or human anatomy in a patently offensive way for minors, and lacks serious literary, artistic, political, or scientific value for minors.
- To verify age, a covered entity must require visitors to comply with a commercial age verification system that uses “government-issued identification” or “commercially reasonable method that relies on public or private transactional data.”
- Knowing violations of H.B. 1181 subject covered entities to injunctions and civil penalties of up to $10,000 per day of non-compliance, plus an additional penalty of up to $250,000 if minors access material as a result of the violation.
- At least 21 other states have imposed materially similar age-verification requirements to access sexual material that is harmful to minors online.
Procedural Posture:
- The Free Speech Coalition, Inc., a trade association, group of companies that operate pornographic websites, and a pornography performer (petitioners) sued Ken Paxton, Attorney General of Texas, in federal District Court.
- Petitioners sought a preliminary injunction to prevent enforcement of H.B. 1181, alleging it was facially unconstitutional under the Free Speech Clause of the First Amendment, hindering adults' right to access covered speech.
- The District Court granted petitioners a preliminary injunction, concluding they were likely to succeed on their claim, holding that H.B. 1181 restricted constitutionally protected adult speech based on content and was subject to strict scrutiny, which Texas failed to satisfy as the least restrictive means.
- The U.S. Court of Appeals for the Fifth Circuit vacated the injunction, holding that petitioners were unlikely to succeed on the merits, viewing H.B. 1181 as regulating distribution to minors of material obscene for minors, only incidentally implicating adult privacy, and thus subject only to rational-basis review, which it survived.
- Petitioners sought a stay of the Fifth Circuit’s judgment from the Supreme Court, which the Supreme Court denied.
- The Supreme Court granted certiorari to determine whether H.B. 1181’s age-verification requirement is likely constitutional on its face.
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Issue:
Does a state law requiring commercial websites publishing sexually explicit content that is obscene to minors to verify visitors' ages trigger strict scrutiny or intermediate scrutiny under the First Amendment's Free Speech Clause?
Opinions:
Majority - Justice Thomas
No, H.B. 1181 does not trigger strict scrutiny; it triggers, and survives, intermediate scrutiny because it only incidentally burdens the protected speech of adults. The First Amendment allows states to prevent minors from accessing speech that is obscene to them, a power that inherently includes requiring proof of age. No person, adult or child, has a First Amendment right to access such speech without first submitting proof of age. Age verification is a common and appropriate means of enforcing age-based lines in many contexts (e.g., alcohol, firearms, driver's licenses), and in-person age verification for sexual material has long been accepted as constitutional. Online, this need is even greater as website operators cannot visually determine age. Because H.B. 1181 simply requires age verification to access content obscene to minors and adults have no First Amendment right to avoid such verification, any burden on adults' right to access the speech is incidental to regulating unprotected activity, thus warranting intermediate scrutiny (citing Boy Scouts of America v. Dale and United States v. O’Brien). Strict scrutiny would call into question all age-verification requirements, even traditional ones, and is almost always fatal, making it ill-suited for traditional, widespread laws. The Court's prior decisions (e.g., Sable Communications, Playboy Entertainment Group, Reno v. American Civil Liberties Union, Ashcroft v. American Civil Liberties Union) are distinguishable as they involved outright bans or effective suppression of adult speech, and were decided at an early stage of internet technology. Rational-basis review, advocated by Texas, is too deferential given the incidental burden on adults' rights. H.B. 1181 survives intermediate scrutiny because it advances Texas’s important, even compelling, interest in shielding children from sexual content and is adequately tailored. The permitted verification methods (government-issued identification, transactional data) are legitimate and widely used. The law is not required to be the least restrictive means (Ward v. Rock Against Racism) or avoid all underinclusiveness (TikTok Inc. v. Garland). Petitioners' arguments regarding privacy concerns and stigma are unpersuasive, as verification is to the website/third-party, and the pornography industry has historically used such methods.
Dissenting - Justice Kagan
Yes, H.B. 1181 should trigger strict scrutiny because it is a content-based law that directly burdens protected speech for adults, and the question should be whether it is the least restrictive means to achieve the State’s compelling interest. While states have a compelling interest in protecting children from speech deemed “obscene for minors,” this speech is often constitutionally protected for adults, who have a right to view it (Butler v. Michigan). H.B. 1181 impedes adults’ exercise of this right by requiring age verification via government ID or transactional data, creating a deterrent due to privacy concerns and costs for website operators, which can have a “chilling effect.” The law is unequivocally content-based, as it applies based on the type and amount of sexually explicit content on a website (Reed v. Town of Gilbert). Under established First Amendment doctrine, content-based regulations of protected speech mandate strict scrutiny (Turner Broadcasting System, Inc. v. FCC). Four prior Supreme Court cases (Sable Communications, Reno v. American Civil Liberties Union, United States v. Playboy Entertainment Group, Inc., Ashcroft v. American Civil Liberties Union) consistently applied strict scrutiny to similar laws restricting adults' access to sexually explicit material to protect minors, even when age verification was involved or the restrictions were not outright bans. The majority’s argument that these prior cases involved “outright bans” is factually inaccurate for most and irrelevant, as content-based burdens on speech require the same rigorous scrutiny as bans (Playboy Entertainment Group). The majority’s claim that this speech is only “partially protected” is circular. The O’Brien “incidental burden” framework is inapplicable because H.B. 1181 directly regulates speech content, not conduct with an incidental effect on expression. While technology has evolved, the basic principles of the First Amendment do not, and strict scrutiny would allow for careful consideration of whether the law is the least restrictive means. The majority’s decision avoids strict scrutiny to ensure the law's approval, overlooking critical questions about the law’s scope and less burdensome alternatives that would be explored under the correct standard.
Analysis:
This case represents a significant shift in how the Supreme Court approaches content-based regulations affecting minors' access to online speech while incidentally burdening adults' protected expression. By establishing intermediate scrutiny as the default for age-verification requirements, the Court creates a more permissive framework for states to regulate internet content for children. This decision could pave the way for a proliferation of similar state laws, potentially normalizing age verification across broad swathes of online content and raising new questions about digital privacy and anonymous speech. Future cases will likely refine the scope of "incidental burdens" and the tailoring requirements under this new intermediate scrutiny standard in the digital realm.
