Free Speech Coalition, Inc. v. Paxton, Docket No. 23-1122

Listen to the episode on Spotify

This case turned on a key detail in the law: it only places a small hurdle on adults, while giving the state room to protect kids from seeing explicit material online.

Texas passed a law that says certain websites with sexually explicit content need to check IDs or use data from a purchase to confirm you’re at least 18. The Supreme Court’s majority said that requirement touches adults’ speech only lightly. Under a middle‐of‐the‐road level of review, the law meets the test because it serves Texas’s important goal of keeping children from exposure to harmful material.

Justice Clarence Thomas wrote for the six justices who agreed that stopping kids from stumbling onto explicit sites is a worthy aim, and the law is carefully written so it doesn’t go too far. But a dissent by Justice Elena Kagan, joined by Justices Sotomayor and Jackson, warned this could chill online speech and set a dangerous precedent.

Summary of the Case

Free Speech Coalition, Inc., along with several commercial porn‐site operators and a performer, challenged Texas's 2023 H. B. 1181, which requires websites that publish content "obscene for minors" to verify users' ages before granting access. Petitioners argued that while Texas may bar minors from such speech, it may not condition adults' access to speech protected by the First Amendment. The U.S. District Court preliminarily enjoined enforcement, concluding that H. B. 1181 imposes a content‐based restriction on protected speech and thus must—and could not—survive strict scrutiny. The Fifth Circuit reversed, holding that H. B. 1181 regulates only minors' access to speech obscene to them (unprotected to minors) and imposes at most an incidental burden on adults' access; it applied rational‐basis review and upheld the law. The Supreme Court granted review to decide the proper First Amendment standard and whether H. B. 1181 is facially unconstitutional.

Opinion of the Court

Justice Thomas, joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett, held that H. B. 1181 triggers intermediate scrutiny. Although adults have a right to access speech that is not obscene by adult standards, the statute's age‐verification requirement "only incidentally burdens" that right, because the law principally serves to prevent minors from accessing content obscene to them. Under Supreme Court precedents, content‐based laws that directly target protected speech require strict scrutiny, but laws that regulate unprotected speech (or have only an incidental effect on protected speech) receive, respectively, no heightened or intermediate review. Because age verification is an "ordinary and appropriate means" of enforcing a state's traditional power to shield minors from sexual material—akin to requiring ID for alcohol or firearms—and does not directly forbid any adult speech, intermediate scrutiny applies. The Court then held that H. B. 1181 survives intermediate scrutiny. By adapting a longstanding in-person approach to the digital age and limiting verification to government IDs or transactional data, the statute advances Texas's important interest in protecting children without burdening substantially more speech than necessary.

Dissenting Opinions

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. She argued that H. B. 1181 "directly burdens" adults' First Amendment right to access speech that is not obscene for them but only for minors, and it does so "because of" the speech's content. Under the content‐based framework, such a law must meet strict scrutiny—the least‐restrictive‐means test—regardless of its aim to protect children. Kagan contended that treating age verification as merely incidental "eviscerates" prior holdings that applied strict scrutiny to analogous burdens on protected speech, and she would remand for strict‐scrutiny review of whether Texas has adopted the least burdensome means.

The First Amendment Balancing Act: Age Verification vs. Adult Free Speech

When sexual material is "obscene for minors" but not for adults, it occupies a hybrid category: unprotected when offered to children, but protected when offered to consenting adults. States may bar minors from that speech without heightened First Amendment scrutiny, yet they cannot wholly prohibit adults from viewing it. A statute that conditions adults' access to otherwise protected content on age verification thus constitutes a content‐based regulation of protected speech.

Traditionally, content‐based restrictions on protected speech invoke strict scrutiny, requiring the government to prove it used the "least restrictive means" possible. The majority here departs by classifying such verification requirements as incidental to regulating minors' access and subjecting them to intermediate scrutiny—asking only whether the law "does not burden substantially more speech than necessary" to further an important non-suppressive interest. Critics warn that this test may permit burdensome age‐verification schemes so long as they serve the interest in preventing minors' access, potentially weakening protections for adult free speech.