In Free Speech Coalition, Inc. v. Paxton (2025), the Supreme Court upheld a Texas law that required pornography websites to verify the age of their users to ensure that only individuals 18 or older were accessing their material.
The case was significant because at least 21 other states have adopted similar laws.
The case marks a turn from previous rulings in which laws that sought to require websites to block juveniles from accessing pornography were overturned as too broad and unduly burdening the rights of adults to access such content.
Background on obscenity, pornography and the First Amendment
U.S. Supreme Court decisions have made it clear that obscenity is not a category of speech protected by the First Amendment. It has also recognized that not all pornography is considered to be obscene. For example, it has ruled that adults have First Amendment rights to view pornography that does not violate the three-part test that the court developed in Miller v. California (1973). That test asks “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient [lustful] interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
The Supreme Court, however, had ruled that this test may be modified when it comes to materials directed to minors. In past cases, however, the court has expressed concern that attempts to keep obscenity out of the hands of juveniles can infringe on the legitimate rights of adults in this area. It has thus struck down a number of laws regulating access to online obscenity on the basis that the laws unduly infringe on the rights of adults.
Free Speech Coalition, Inc. v. Paxton (2025) involved a law adopted by Texas and defended by its Attorney General Ken Paxton. It requires internet websites that contain sexual materials that might be harmful to minors to require such sites to “use reasonable age verification methods ... to verify that an individual attempting to access the material is 18 years of age or older,” and subjected them to penalties for failing to do so.
What judges thought of Texas law - was it narrowly tailored?
When the Texas law was challenged, a U.S. district court decided that the law must be subject to strict scrutiny, which requires the government to show that the law serves a compelling state interest and is narrowly tailored and used the least restrictive means for achieving this interest. Although the court agreed that protecting minors was a compelling state interest, it did not think the law was narrowly tailored, suggesting that it could instead have encouraged parents to install content-filtering software on their children’s devices. It therefore issued an injunction against the law.
The Fifth U.S. Circuit Court of Appeals, by contrast, vacated the decision on the basis that the law was a “’regulatio[n] of the distribution to minors of materials obscene for minors,’” which only incidentally implicates ‘the privacy of those adults’ seeking to access the regulated content.” Because minors had no First Amendment right to access such materials, the 5th Circuit held that the law need only be subject to the less restrictive rational basis review, which it thought it passed.
Justice Thomas: Age-check for porn does not suppress free speech
Justice Clarence Thomas wrote the Court’s majority opinion in which he ruled that the proper standard for reviewing the law was neither that of strict scrutiny nor the mere rational basis test but that the court should apply intermediate scrutiny, which he thought that it passed. Thomas observed that according to Ashcroft v. American Civil Liberties Union (2002) and other cases, government did not have the right to restrict expression because of its subject matter or content.
Whereas content-based laws were presumptively unconstitutional and required strict scrutiny, content-neutral laws are subject to intermediate scrutiny because, as established in Turner Broadcasting System, Inc. v. FCC (1994), “they pose a less substantial risk of excising certain ideas or viewpoint from the public dialogue.” As established in Turner Broadcasting System, Inc. II v. FCC (1997), intermediate scrutiny will permit a law that “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech that necessary to further those interests.”
Thomas observed that the First Amendment does not protect certain categories of speech, including “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” He further noted that the law distinguished between speech that was obscene for adults and that which was obscene for children, the latter of which governments had greater responsibility and freedom to regulate. Citing Ginsberg v. New York (1968), Thomas noted that when the Miller Test was applied to juveniles, it should be modified to materials that were considered to be obscene to such minors.
In Reno v. American Civil Liberties Union (1997), the Supreme Court had struck down part of the
Communications Decency Act of 1996 that criminalized the use of the internet to knowingly transmit obscenity to minors by requiring age verification. It did so because it believed that, given existing technology, it would suppress large amounts of speech that adults had the right to receive. In Ashcroft v. American Civil Liberties II (2004), the Supreme Court had struck down provisions of the Children’s Online Privacy Protection Act of 1998 for similar reasons.
Thomas cites other age-checks: Buying alcohol, tobacco, tattoos
In reviewing these precedents, Thomas observed that Texas had a traditional power to protect minors from obscene materials, and that age-verification laws furthered this power. He likened it to the kind of in-person age verification requirement in Ginsberg, as well as to requirements for age verification to purchase alcohol, tobacco, lottery tickets, a tattoo, fireworks, a driver’s license, certain medications, or to marry or to vote. He argued that the need for age verification online “is even greater.”
On its face, the Texas law regulates “only speech that is obscene to minors.” Moreover, “adults have no First Amendment right to avoid age verification.” He likened such an “incidental burden” to that imposed in United States v. O’Brien (1968), which had prohibited the burning of draft cards. In such cases the Court should apply intermediate scrutiny.
He further attempted to distinguish the case at hand from earlier precedents such as Sable Communications of Cal., Inc. v. FCC (1989) and United States v. Playboy Entertainment Group (2000) that “banned both adults and minors from accessing speech,” as well as the decisions in Reno and Ashcroft.
Thomas said age verification for websites is easier now
Noting that Pornhub had over 1.36 million hours of content, much of it violent, Thomas noted that technology had advanced to make internet age verification easier and that the Texas laws could thus survive intermediate scrutiny. He concluded that “requiring age verification online is plainly a legitimate legislative choice,” and that age-verification through government-issued identification or transactional data was regularly used in other contexts.
Thomas dismissed privacy concerns believing that websites would have every incentive to “assure users of their privacy,” and noting that many such sites had already required such verification.
Dissenting Opinion
Justice Elena Kagan authored a dissenting opinion that Justice Sonia Sotomayor and Ketanji Brown Jackson joined. Acknowledging that children had no right to view obscenity, they thought that the proper standard to apply in cases that could restrict the rights of adults was that of strict scrutiny and believed that Texas could have adopted measures that were less restrictive of such speech.
Kagan observed that “The First Amendment prevents making speech hard, as well as banning it outright.” She further believed that the law at issue impeded adult rights and had a “chilling effect” on the speech they could access. She stressed that the law was “content based.” She also noted that the Court had applied strict scrutiny in most cases that Justice Thomas had cited. She specifically noted that the decision in United States v. O’Brien involved conduct rather than speech. She believed that Texas should have to do more “to ensure that it is not undervaluing the interest in free expression.”
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.