Docket 23-1122
Free Speech Coalition Inc. v. Paxton
DecidedJun 27, 2025
6-3decision
Source: CourtListener.
States may require age verification on pornographic websites to block minors' access
Impact8/10
What it does
The Court held that Texas's age-verification law for pornographic websites is subject to intermediate scrutiny — a middle-level constitutional test — rather than the more demanding strict scrutiny standard. Under that intermediate test, the law passes constitutional review because it advances Texas's important interest in shielding children from sexually explicit content and does not burden substantially more speech than necessary to do so. Adults retain the right to access the covered material after completing age verification.
Who benefits
State governments seeking to enforce age-verification requirements on commercial websites that publish sexually explicit content. Minors, who are the intended beneficiaries of the law's restriction on their access to online pornographic material.
Who is affected
Commercial website operators whose content is more than one-third sexually explicit material harmful to minors, who must now implement age-verification systems or face civil penalties. Adult users of those websites, who must submit government-issued identification or transactional data before accessing covered content.
Practical impact
At least 22 states with similar age-verification laws for online sexually explicit content may now enforce those laws without being blocked by preliminary injunctions based on First Amendment challenges. Commercial pornographic website operators must implement compliant age-verification systems — using government-issued ID or transactional data — or face civil penalties of up to $10,000 per day and up to $250,000 if a minor accesses covered material. Adult users of covered websites must submit identifying information to gain access, and the ruling leaves open unresolved questions about whether websites must verify ages for all their content or only the sexually explicit portion, and whether newer biometric verification methods are permitted.
Majority — Thomas
Joined by: Roberts, Alito, Gorsuch, Kavanaugh, Barrett
The majority held that states have a long-recognized power to prevent minors from accessing speech that is obscene from a child's perspective, and that this power necessarily includes the ordinary and appropriate means of enforcing it — including requiring proof of age. Because no person has a First Amendment right to access such speech without first submitting proof of age, the law's burden on adults is only incidental to its regulation of activity that is not constitutionally protected (minors accessing obscene-for-minors content), making intermediate scrutiny the correct standard. The Court reasoned that applying strict scrutiny would call into question all age-verification requirements — including longstanding, widely accepted in-person requirements at brick-and-mortar stores — because strict scrutiny is designed to be nearly always fatal and is ill-suited to laws that are traditional and broadly accepted as legitimate. The majority distinguished its prior decisions in Reno v. ACLU and Ashcroft v. ACLU, explaining that those cases involved outright bans that effectively suppressed adults' access to protected speech, whereas Texas's law merely requires adults to verify their age before accessing content they remain free to view. Under intermediate scrutiny, the law readily passes: protecting children from sexually explicit content is an important government interest, and age verification through government ID or transactional data is a well-established, adequately tailored method of advancing that interest without requiring the least restrictive means.
Dissent reasoning
The dissent argued that H.B. 1181 is a straightforward content-based restriction on speech that is constitutionally protected for adults, and that four prior Supreme Court decisions — Sable Communications, Reno v. ACLU, Playboy Entertainment Group, and Ashcroft v. ACLU — all applied strict scrutiny to materially similar laws for exactly that reason. Because the law defines covered speech by its sexual content and imposes a burden (age verification) on adults who wish to view that protected speech, the dissent maintained that strict scrutiny is required — the same rigorous but not automatically fatal standard the Court has consistently applied in this context. The dissent rejected the majority's characterization of the burden as merely "incidental," arguing that unlike the conduct-based laws in cases such as United States v. O'Brien (which involved draft card destruction), H.B. 1181 directly regulates communicative content, not non-expressive conduct that happens to sweep in speech. The dissent also disputed the majority's claim that the prior cases all involved outright bans, pointing out that Playboy explicitly involved a time-based burden rather than a complete prohibition, and that the Court in Playboy stated that "content-based burdens must satisfy the same rigorous scrutiny as content-based bans." Finally, the dissent argued that applying strict scrutiny would not doom Texas's law: because shielding children from this material is a compelling interest and internet-based age verification may well be the least restrictive effective means available, the law could survive strict scrutiny — making the majority's departure from established doctrine both legally unfaithful and practically unnecessary.
Constitutional question
Does Texas's law requiring commercial pornographic websites to verify that visitors are 18 or older violate the First Amendment's Free Speech Clause, and if so, what level of constitutional scrutiny applies?
Precedent changed
The Court narrowed the reach of Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), and Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004), holding that those decisions addressed only outright bans on adults' access to protected speech and did not establish strict scrutiny as the applicable standard for age-verification requirements, which impose a lesser burden.