SCOTUS Upholds Texas’s Online Age Verification Law: Does it Redefine Speech Rights?

The U.S. Supreme Court delivered a major decision in Free Speech Coalition, Inc. v. Paxton, affirming Texas’s 2023 law (H.B.1181) that requires commercial websites publishing sexually explicit material to verify their users’ ages.

The ruling, carrying significant national implications, addresses the long-standing tension between protecting minors online and safeguarding adults’ access to lawful, but sensitive, speech.

What's The Matter?

Texas’s H.B.1181 arose as a response to the escalating ease with which minors can access explicit content online an issue legislators described as “addictive” and harmful to youth development.

The law mandates that websites where over a third of content qualifies as “harmful to minors” (obscene under a minor-adapted version of the Miller test) must use age verification systems.

A violation may result in severe civil penalties, including up to $10,000 per day and, in egregious cases, up to $250,000.

Soon after enactment, industry representatives and a performer united under the Free Speech Coalition—challenged the statute, contending it creates unconstitutional obstacles for adults who have a First Amendment right to access this class of speech.

The statute, in their view, imposed burdens on adult access based solely on speech content.

What Court Said?

Justice Thomas, writing for the majority, held that H.B.1181’s age verification requirements do not violate the Free Speech Clause of the First Amendment. The heart of the decision rests on the standard of review: instead of “strict scrutiny” (reserved for direct, content-based restrictions of protected speech), the Court applied “intermediate scrutiny.”

The law, it reasoned, is a traditional exercise of state power: preventing minors from accessing material obscene to them. It only “incidentally” burdens the rights of adults, who must verify their age before accessing such content.

Key arguments from the majority:

Age verification to enforce age-based restrictions on obscenity is as constitutionally permissible as longstanding requirements in alcohol, tobacco, and firearm laws or in-person purchases of explicit material.

Adults have no First Amendment right to avoid showing proof of age in these circumstances; the burden is seen as minor, compared to the importance of the state’s protective goal.

Traditional in-person age checks have never triggered strict scrutiny, and the same logic should apply to online verification.

Existing precedent cases like Ginsberg v. New York and Butler v. Michigan suggests rational basis or, at most, intermediate scrutiny is appropriate where the law mainly regulates unprotected speech (that is, content obscene for minors).

Ultimately, the Court concluded H.B.1181 is both “adequately tailored” and furthers Texas’s “important governmental interest” in protecting children. It does not burden more speech than necessary and, under intermediate scrutiny, need not represent the “least restrictive means” available.