Screening Speech: SCOTUS Upholds Texas’s Age-Verification Law 

By: Charlotte Easley, Vol. 24 Staff Writer

The Cost of Clicking

The Supreme Court’s decision in Free Speech Coalition v. Paxton marks a turning point in how states can regulate access to sexually explicit online content, upholding a Texas law that requires commercial websites to verify user age before engagement. Under Texas’s H.B. 1181, adult-content sites that fail to use age-verification technology face fines of up to $10,000 per day per violation. Hundreds of high-traffic adult websites serving millions of daily visitors means compliance could cost the industry tens of millions of dollars annually. However, the financial impact doesn’t stop there. Technology companies that sell verification tools are already seeing an influx of contracts from adult sites scrambling to comply. Texas is among a growing number of states including Louisiana, North Carolina and Utah, that have enacted similar laws to curb children’s access to pornography. Now, with the Supreme Court’s seal of approval, more states are likely to follow suit.

Behind the Firewall: What the Law Actually Does

Texas’s H.B. 1181 applies to commercial websites whose content is more than one-third pornographic material. Under the Texas law, such sites must use reasonable age-verification measures before allowing users to enter. The law also requires these websites to display state-authored warnings about pornography’s alleged harms, including claims that it can be “biologically addictive” and damage brain development.

The Free Speech Coalition, along with other representatives of the adult entertainment industry, challenged the law on First Amendment grounds. The petitioner’s main arguments centered around claims that the age verification chilled lawful adult speech by creating roadblocks to access and fears about data privacy. They further contended that the government was compelling speech via the required “health” warnings. The federal district court for the Western District of Texas agreed that law impeded the free access to information of adult consumers, as well as the freedom from compelled speech rights of the platforms.

First Amendment Filter: What Level of Scrutiny Applies?

The case ultimately turned on a familiar First Amendment question: Is the law content-based or content-neutral? While a law that targets the content of speech triggers strict scrutiny, the highest level of constitutional review, a content-neutral law is reviewed under intermediate scrutiny.

The Court’s majority, opinioned by Justice Thomas, applied intermediate scrutiny, meaning the Court determined the law was content-neutral. The Court noted it had allowed states to restrict the distribution of material thought harmful to minors since its decision in Ginsberg v. New York (1968). Since the Texas Bill only regulates access to that material, rather than the material itself, the Court deemed it a conduct-based, not speech-based, regulation.

Two-Factor Authentication: Verifying the Law’s Constitutionality

Applying intermediate scrutiny, the Court found that Texas’s law advances an important governmental interest: protecting minors from exposure to obscene or harmful material. This interest, the Court emphasized, has been recognized since the Nation’s founding. Additionally, the Court concluded that the statute is narrowly tailored. The Court reasoned the means are especially narrow because verifying age is the only and most reasonable way to ensure the content doesn’t get into the hands of minors. The majority analogized the law to long-standing accepted regulations such as ID checks for alcohol or R-rated movies, that impose seemingly minimal burdens on adults while serving legitimate protective purposes.

The Court rejected claims that less restrictive alternatives, such as parental filters, were sufficient, explaining that intermediate scrutiny does not demand the least restrictive means.

Justice Kagan’s dissent disagrees, suggesting that the restrictions under the Texas law are not “minimal” at all. She suggests that that requiring adults to submit government identification or any kind of personal data before accessing legal material would deter lawful speech and threaten online anonymity.

What Comes Next?

As more states follow Texas’s lead, courts will face the challenge of distinguishing between regulation and restriction. Deciding when an incidental burden becomes substantial enough to violate the First Amendment will likely face challenges for years to come. States will likely push the boundaries of this recent SCOTUS decision in the name of further protecting children. How far could these protective laws go? For instance, imagine requiring adult consumers to come to a government office and enroll in a “pornography registry.” Where will SCOTUS draw the line? Now, with the rise of artificial intelligence making explicit content far easier to generate and distribute, the question becomes increasingly urgent. How can the law keep pace when pornography itself is being constantly redefined by technology?