In Free Speech Coalition v. Paxton, the U.S. Supreme Court upheld a Texas law requiring commercial websites to verify users’ ages before allowing access to sexually explicit material deemed “harmful to minors.” The 6-3 decision may appear modest; age-gating pornography to protect children sounds reasonable to many. But its legal rationale carries major implications. It lowers the level of constitutional scrutiny applied to content-based burdens on adult speech and opens the door to vague, privacy-invasive restrictions justified under a banner of child protection.
Texas’ law requires websites with more than one-third of their content consisting of material “harmful to minors” to verify that users are 18 or older. Sites must use government-issued ID, credit card data, or other forms of transactional verification. Covered entities face daily fines, plus additional penalties if a minor accesses restricted content. The law sweeps broadly, and the penalties for noncompliance are high.
To understand what’s at stake, it’s important to recall how constitutional scrutiny works in First Amendment law. Strict scrutiny, the highest standard, applies when the government burdens speech based on its content. To survive strict scrutiny, a law must serve a compelling interest, be narrowly tailored, and use the least restrictive means available. Most laws fail this test. Intermediate scrutiny, a middle-tier test, requires that the law serve an important interest and not burden substantially more speech than necessary. Rational basis, the most deferential standard, applies when no fundamental right is implicated – the government need only show the law is reasonably related to a legitimate interest.
The challenge courts have faced is how to protect minors from certain kinds of speech without infringing on the constitutional rights of adults. The Court has long recognized that minors may be shielded from sexually explicit material that is not obscene for adults, but it has also insisted that adults should retain full access to protected speech. The constitutional problem arises when the state attempts to regulate access in a way that necessarily sweeps in adults, burdening their First Amendment rights both to speak and to receive speech. In such circumstances, the Court has consistently applied strict scrutiny and has struck down laws that are too broad, too vague, or that fail to explore less-restrictive alternatives.
For example, in Sable Communications v. FCC (1989), the Court struck down a federal ban on “dial-a-porn” telephone messages that were “indecent but not obscene.” The Court applied strict scrutiny because the law burdened adult access to protected speech. In Reno v. ACLU (1997), the Court invalidated key provisions of the Communications Decency Act that banned “indecent” and “patently offensive” material online, because of the effects on the speech of adults. In Ashcroft v. ACLU (2004), the Court upheld a preliminary injunction against the Child Online Protection Act, finding that less restrictive alternatives like filtering software might be just as effective as content bans. And in United States v. Playboy Entertainment Group (2000), the Court invalidated a law requiring cable operators to block sexually explicit channels during certain hours, holding that user-initiated blocking was a less restrictive alternative.
The U.S. Court of Appeals for the Fifth Circuit in Paxton broke from precedent. It held that Texas’ law regulated only material that is “obscene for minors,” which it treated as a category of unprotected speech. On that basis, the court applied rational basis review and concluded that any burden on adults was incidental and, therefore, constitutionally insignificant. In last week’s opinion, the Supreme Court rejected that standard but not the outcome. But rather than applying strict scrutiny in line with precedent, the Court applied intermediate scrutiny, holding that the burden on adult access was “incidental” to the state’s interest in shielding children.
This shift in analysis is both new and troubling. The Court does not treat the law as a content-based regulation of protected adult speech. Instead, it frames the law as a permissible enforcement tool aimed at unprotected material: specifically, speech that is obscene to minors. As Justice Thomas writes for the Court, “The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content.” But that assertion assumes its own conclusion. Under traditional First Amendment doctrine, a state has authority to restrict access to content only if its chosen method, such as age verification, is necessary and narrowly tailored to achieve the stated goal. The conclusion that the law is valid because the state has this power skips the analysis that would establish whether the law meets those conditions in the first place. Also, even if some form of age verification might be justified, that should not mean every law requiring it is constitutional.
Last week’s opinion is thus a major change to First Amendment doctrine. Paxton treats adult burdens as secondary and reframes precedent in a way that diminishes adult speech rights. Instead of reaffirming that adults have a fully protected constitutional right to access speech that is “indecent but not obscene,” and that any burden on that right must be “narrowly tailored,” the majority holds that once speech is deemed “obscene to minors,” it becomes only “partially protected” by the First Amendment, even when accessed by adults. The Court’s opinion attempts to deny this, but this holding is a major shift that will make it much easier to limit adult access to constitutionally protected speech in the name of protecting children.
In doing so, the Court sets aside a once-useful analytic distinction. Earlier cases employed terms like “obscenity” more broadly. For example, in Ginsberg v. New York, the Court cited with approval a lower court decision that had stated, “[M]aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined.” But the Court’s subsequent decision in Miller v. California clarified what constitutes “obscene” material and thereby removed it from First Amendment protection altogether. (The Miller test defines obscenity based on whether the work (1) appeals to the prurient interest under contemporary community standards, (2) depicts or describes sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value when taken as a whole.)
While “community standards” may differ from place to place, it is difficult to maintain that speech could be considered obscene and entirely unprotected – and therefore subject to total bans – for one group while still being protected for another, in the same community. This tension led the Court to adopt the term “indecent” (for example, in cases like FCC v. Pacifica Foundation, concerning George Carlin’s “Seven Words You Can Never Say on Television” monologue) to describe material that is constitutionally protected for adults but may be subject to restrictions when it comes to minors. This is how the Court viewed the issues in the Sable case: While the government could entirely ban “obscene” dial-a-porn phone calls, it could not entirely ban “indecent” calls, only adopt measures to prevent children from accessing them.
Bypassing this analysis, the specific test Justice Thomas, writing for the Court, put forth for what is “obscene to minors” now reads: “A State may prevent minors from accessing works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors.” Nothing in this standard requires that the material also be indecent (or obscene) for adults. That opens the door to a regime where speech is restricted based solely on how it may be perceived by some undefined subset of minors, regardless of its value or protection for adults.
This change has potentially serious implications. Once material is labeled “obscene to minors,” it gets diminished Constitutional protection across the board. Texas’ law illustrates how problematic that shift can be. The statute is not a model of clarity or precision. Paraphrasing the Miller test, its definition of “harmful to minors” is vague and expansive, encompassing content that appeals to the “prurient interest” of minors, is “patently offensive,” and lacks serious value – all measured by standards that vary across age groups. But a 7-year-old and a 17-year-old do not share the same developmental stage or capacity to evaluate content. Treating all minors as a single category oversimplifies that reality. And the law is triggered when just one-third of a site’s content falls into this murky zone. That threshold could easily ensnare not just pornography sites but also platforms that provide sexual health information, LGBTQ+ resources, or artistic works that include frank discussions of sex (or even other sensitive topics).
And the verification methods the law demands are privacy-invasive. Uploading a government ID or financial data to access lawful speech online invites abuse, chilling, and tracking. The Court waves this away with comparisons to showing ID at liquor stores. But what that misses is that the internet is different: a place where people reasonably expect to read, search, and explore anonymously. Forcing users to tie their identities to what they view or read online erodes that expectation. The First Amendment has long recognized that privacy and anonymity are essential components of free expression.
Justice Kagan’s dissent gets it right: What exactly was wrong with strict scrutiny? It’s a hard test to pass, but not automatically fatal. She writes,
A law like H. B. 1181 might well pass the strict-scrutiny test, hard as it usually is to do so. As just noted, everyone agrees that shielding children from exposure to the sexually explicit speech H. B. 1181 targets is a compelling state interest. And Texas might be right in arguing that it has no less restrictive way to achieve that goal: It is difficult, as everyone also agrees, to limit minors’ access to things appearing on the internet. If H. B. 1181 is the best Texas can do—meaning, the means of achieving the State’s objective while restricting adults’ speech rights the least—then the statute should pass First Amendment review.
But what if Texas could do better—what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech H. B. 1181 covers? That is the ultimate question on which the Court and I disagree.
Under the previous test of strict scrutiny, the government has to prove, with evidence, that its chosen method is necessary and minimally intrusive. That is why trials and fact-finding matter. Strict scrutiny is not a death sentence: it is a demand for justification. Measures that restrict potentially dangerous app features from children (like live-streaming) might be easier to justify than Texas’ overbroad approach, for instance – and may not necessarily involve limiting adult access to “speech” at all. (Similarly, intermediate scrutiny, properly applied, does not necessarily allow all burdens on speech. Had the Court more thoroughly examined Texas’ law, it should have found that it “burdens substantially more speech than necessary” even relative to other age-gating laws.)
Indeed, the Court itself has recognized that some forms of age-gating may pass strict scrutiny. In Sable, the Court cited with approval a lower court finding that age restriction methods (the use of credit card, access code, and scrambling technologies) were “a satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors,” noting that “[t]he Court of Appeals, after careful consideration, agreed that these rules represented a ‘feasible and effective’ way to serve the Government’s compelling interest in protecting children.” The Court therefore noted an age-restriction mechanism that allowed adult access while protecting minors was identified as a less-restrictive alternative to a complete ban. Technology and the market have changed, so what technologies today might be considered the least restrictive alternative, that are “necessary” to protect children from harmful materials, would be different today. But both Kagan and the Court have noted that this is possible under strict scrutiny.
The Court in Paxton, by contrast, forecloses the evidentiary process entirely. By applying only intermediate scrutiny and accepting the state’s justifications at face value, it cuts off the fact-finding needed to determine whether this specific law, which is vague in scope, expansive in reach, and burdensome to privacy, is actually necessary, or whether more precise, privacy-preserving alternatives would suffice.
The result is a doctrine that lets lawmakers pass vague, sweeping, privacy-compromising laws that burden adult access to speech, so long as they invoke a familiar slogan: “Protect the children.” But constitutional rights do not evaporate when minors are involved. Protecting children is important, but it must be done in a way that respects the rights of adults and the integrity of the First Amendment.
What, then, is the way forward? The Court has now signaled that it will defer to legislatures that claim to be protecting children, even when those laws restrict access to lawful adult speech and undermine long-held privacy norms. That raises the stakes for legislative and regulatory advocacy. Privacy and free expression advocates can no longer rely on courts to serve as the main check on overbroad or poorly drafted laws. Instead, they must double down on efforts to educate lawmakers, mobilize public opinion, and improve policy. That work is already underway in some states and at the federal level, and it will only become more important.
This is not cause for resignation. Legislatures can be persuaded. Bad bills can be defeated. In many cases, simply pointing out the privacy and security risks of broad ID-based verification regimes is enough to give lawmakers pause. If not ideal, some age verification methods may be more privacy-preserving than simple requirements to provide a credit card or government ID. Systems based on zero-knowledge proofs or other decentralized credentials may be the least-bad path. Whether such systems are, in fact, effective, feasible, and narrowly tailored is precisely the kind of question that courts applying strict scrutiny should consider. But if the courts no longer ask these questions, it is all the more urgent that policymakers and advocates do.