Texas Age Verification Law Upheld: U.S. Supreme Court Balances Free Speech and Child Protection in the Digital Age

On June 27, 2025, the U.S. Supreme Court issued its opinion in Free Speech Coalition, Inc. v. Paxton, a groundbreaking decision with significant implications for online content regulation. The Court upheld a Texas statute — House Bill 1181 (HB 1181) — requiring commercial websites that host a substantial amount of sexually explicit material to verify users’ ages before granting access. In doing so, the Court applied intermediate scrutiny and upheld the statute as a constitutionally permissible measure to protect minors from harmful content.

HB 1181

HB 1181 mandates that commercial websites, where more than one-third of the content is “sexual material harmful to minors,” verify that visitors are 18 years or older. The statute also authorizes the Texas Attorney General to impose substantial civil penalties for noncompliance.

Petitioners, representing various stakeholders in the pornography industry, challenged the law and argued that the statute unconstitutionally burdens adults’ rights to access legal content. A federal district court agreed and issued a preliminary injunction. The Fifth Circuit vacated that ruling, holding that HB 1181 primarily regulates the “distribution to minors of materials obscene for minors,” and therefore HB 1181 is not subject to strict First Amendment scrutiny. The Supreme Court affirmed, holding that the law imposes only an incidental burden on protected adult speech and withstands intermediate scrutiny.

Intermediate Scrutiny, Not Strict: A Pivotal Distinction

Justice Clarence Thomas, writing for the majority and joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett, emphasized that HB 1181 differs meaningfully from prior laws the Court struck down, which regulated sexually oriented speech for the purported purpose of preventing its dissemination to minors. In distinguishing Reno v. American Civil Liberties Union and Ashcroft v. American Civil Liberties Union II (Ashcroft II), for instance, the majority explained that the earlier constitutionally problematic statutes effectively banned speech to adults and were therefore subject to (and failed) strict scrutiny. In contrast, according to the Court, HB 1181 imposes only an incidental burden on adult speech through traditional age-verification requirements and builds compliance into the statute’s framework rather than offering it only as an affirmative defense.

The majority also highlighted the changing technological landscape since Ashcroft II was decided in 2004. It argues that today’s content is more graphic and pervasive, and thus requiring proof of age online is a reasonable extension of traditional in-person age restrictions. Notably, although exempting search engines, the law does not similarly exempt social media platforms — those sites are exempt only if less than one-third of their content is deemed “harmful to minors.” The majority characterized the statute as a measured and appropriate digital adaptation of longstanding protections for children.

Dissent: A Critique of the Majority’s Departure From Precedent

Justice Elena Kagan, joined in dissent by Justices Sonia Sotomayor and Ketanji Jackson, argued that HB 1181 should be subject to strict scrutiny because it burdens adults’ access to constitutionally protected speech based solely on content. The dissent rejected the distinction between a “ban” and a “burden,” pointing out prior precedents have consistently applied strict scrutiny to content-based restrictions on speech regardless of the form of restriction. The dissent emphasized that even well-intentioned regulation can have a chilling effect and stressed the need for less restrictive alternatives, such as parental filtering tools. Importantly, the dissent maintained that applying strict scrutiny does not doom the statute; it ensures that states adopt the least restrictive means to protect children without unnecessarily limiting adults’ rights.

Implications: A Green Light for State-Led Online Content Regulation?

To date, nearly half of U.S. states have enacted similar statutes requiring age-verification prior to accessing sexually explicit content online. The Supreme Court’s decision provides a legal roadmap for other states: Age-verification statutes may survive intermediate scrutiny if they are aimed at restricting minors’ access to sexual content that is “harmful to minors” and if verification only incidentally burdens adults’ access. However, the Supreme Court’s decision implicates more than just pornography; the holding engulfs any website or social media platform where a third or more of the content could be viewed by an “average” person as “sexual” and “obscene” to minors.

In a world where data leaks are rampant, privacy critics have invoked arguments that mandatory age verification requires users to upload sensitive personal information to gain access, escalating the risk of data breaches and potential misuse. Others have warned that such verification threatens anonymous internet browsing — a practice courts have recognized as a protected under the First Amendment. The scope of what qualifies as “harmful to minors” also remains uncertain, raising concerns that Free Speech Coalition, Inc. v. Paxton may lead to overcensorship or a chilling effect on lawful speech.

Websites covered by HB 1181 now face the burden of implementing age verification technology and complying with its requirements. Some websites have responded by blocking Texas users. They argue that the bill not only violates First Amendment and privacy rights but also compromises safety because it pushes minors toward sites with inadequate protections.

The Supreme Court’s decision in Free Speech Coalition, Inc. v. Paxton signals a significant shift in digital content regulation. Content providers and platforms will need to carefully navigate both privacy laws and the evolving age-verification laws to avoid significant penalties.

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