Supreme Court sets new standards for restricting online adult sexual content in Free Speech Coalition v. Paxton

Background

In 2023, Texas enacted HB 1181, requiring adult websites to verify users' ages through a government-issued ID or another commercially reasonable method. A trade association representing online adult sexual content providers sued, claiming that the law improperly restricts adults' rights to access lawful speech. A federal district court preliminarily enjoined the law, applying strict scrutiny, but the U.S. Court of Appeals for the Fifth Circuit reversed that decision, applying the much more lenient rational basis standard.

In a 6-3 decision authored by Justice Thomas, the Court held that the law imposes “only an incidental effect on protected speech,” making intermediate scrutiny the appropriate standard. The Court concluded the law survives that review because it “advances the State's important interest in shielding children from sexually explicit content” and is appropriately tailored, permitting users to verify their ages through established methods like government-issued IDs or transactional data.

Key Takeaways

1. Constitutional protections are weakened for online adult sexual content.

The Court has previously held that efforts to prevent minors from accessing online adult sexual content must withstand strict scrutiny when those restrictions also burden adults' access. See Reno v. ACLU, 521 U.S. 844 (1997); Ashcroft v. ACLU, 542 U.S. 656 (2004). Laws subject to strict scrutiny are presumptively unconstitutional. However, in this case, the Court took a different approach, applying intermediate scrutiny, which is less demanding and requires that a law must serve an important government interest unrelated to suppressing free expression and not burden substantially more speech than necessary.

2. States are still subject to limits.

Although intermediate scrutiny is deferential, the Court noted it is not “toothless” and “plays an important role in ensuring that legislatures do not use ostensibly legitimate purposes to disguise efforts to suppress fundamental rights.” For example, the Court noted that Texas “could not require as proof of age an ‘affidavit' from an individual's ‘biological parent.'” This suggests that states and Congress do not have limitless authority to restrict minors' access to online adult sexual content and must still act within some bounds of reasonableness.

3. The Court thinks times have changed for the Internet.

The majority distinguished Reno and Ashcroft, stating that those early cases were concerned about legislative threats to “the then-nascent internet,” whereas since then “the internet has expanded exponentially” and most teens are available to surf the web on smartphones. The Reno and Ashcroft Courts, the majority continued, “could not have conceived of these developments, much less conclusively resolve how States could address them.”

4. The Court is skeptical about online privacy risks.

HB 1181 requires adults to verify their age using government-issued IDs, such as a driver's license, or transactional data, such as mortgage, education, or employment records. Petitioners argued that using this information raises serious privacy concerns for adults seeking access to sexually explicit websites. The Court was not persuaded by this argument in this particular context, reasoning that users would only need to submit verification to either the website itself or a contracted third party, both of which “have every incentive to assure users of their privacy.”

5. States and Congress seem poised to continue pursuing further legislation, raising new First Amendment questions.

At least 21 other states have enacted similar age verification requirements for online adult sexual content, and other states and Congress may follow (federal legislators already introduced the SCREEN Act earlier this year). Additionally, many states have imposed age verification and other regulations for other types of content (e.g., social media or certain platform features). Legislators may seek to use the Supreme Court's decision to avoid close judicial review for such laws. For example, because the decision applies intermediate scrutiny to laws aimed at online adult sexual content, states may argue that intermediate scrutiny should also apply to these broader regulations. Future cases will need to sort out the extent of the decision's impact.

Authored by Mark Brennan, Sean Marotta, Ryan Thompson, Sophie Baum, Thomas Veitch, and Jordyn Johnson.