The Supreme Court on Friday upheld a Texas law that requires pornography websites to the verify age of users before those users can gain access to explicit material.
The court ruled 6-3 in Free Speech Coalition, Inc. v. Paxton that states may require age-verification laws to access sexually explicit materials in order to prevent children from accessing those materials. Justice Elena Kagan dissented, joined by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson. Justice Clarence Thomas wrote the opinion for the majority.
The 2023 Texas law at the center of the case requires pornography sites to verify the age of users before providing access and applies to any website whose content is one-third or more “harmful to minors.” Petitioners Free Speech Coalition, Inc. — representatives of the pornography industry — sued Texas Attorney General Ken Paxton to prevent enforcement of the law because it burdens adult visitors of the sites, who have a First Amendment right to access the material the websites publish.
“We granted certiorari to decide whether these burdens likely render H.B. 1181 unconstitutional under the Free Speech Clause of the First Amendment,” Thomas wrote. “We hold that they do not. The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content. H.B. 1181 is a constitutionally permissible exercise of that authority.”
The more narrow legal question presented in the case hinged on whether such age-based restrictions must withstand the judicial standard of strict scrutiny if they burden adults’ access to constitutionally protected speech. Strict scrutiny is the highest standard of judicial review applied to the constitutionality of a government action that burdens a fundamental right such as speech. The process shifts the burden of persuasion to the government, which must show its actions were the least restrictive means of furthering a compelling government interest.
The Court held that intermediate scrutiny, rather than strict scrutiny, was the appropriate standard for evaluating the burden of age-verification.
Intermediate scrutiny is less rigorous than strict scrutiny but more rigorous than rational-based review. Commonly used in First Amendment cases, the standard requires that a challenged law furthers an important government interest and does so by means substantially related to that interest.
“H.B. 1181 has only an incidental effect on protected speech, and is therefore subject to intermediate scrutiny,” Thomas wrote. “The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person — adult or child — has a First Amendment right to access such speech without first submitting proof of age.”
In evaluating the Texas law, the Fifth Circuit Court of Appeals previously applied rational-based review, which requires that a given law uphold a legitimate state interest and requires that there be a rational connection between the law’s means and goals. The circuit court held the law was rationally related to the government’s interest in preventing minors from viewing pornography.
Pornhub pulled out of Texas in 2024 in response to the Fifth Circuit’s decision, one of 17 states that the company has abandoned over age-verification laws. Petitioner Free Speech Coalition challenged the ruling, arguing the Supreme Court’s precedent regarding minors’ access to sexually explicit materials requires the application of the highest judicial standard.