Free Speech Coalition v. Paxton

Texas’s age-verification law for sexually explicit websites triggers only intermediate scrutiny and is constitutional because it merely imposes an incidental burden on adults’ protected speech while serving the state’s important interest in shielding children from harmful content. Justice Clarence Thomas authored the 6-3 majority opinion of the Court. H.B. 1181 requires commercial websites where more than one-third of content is “sexual material harmful to minors” to verify visitors are 18 or older through government ID or transactional data. The First Amendment permits states to prevent minors from accessing speech that is obscene from their perspective, and this power necessarily includes the ordinary means of enforcing age limits through verification requirements. Because no person has a First Amendment right to access obscene-to-minors content without submitting proof of age, the law directly regulates only unprotected activity. Adults retain their right to access this protected speech after verification, making any burden merely incidental rather than a direct content-based restriction requiring strict scrutiny. Under intermediate scrutiny, laws must advance important governmental interests unrelated to suppressing free speech without burdening substantially more speech than necessary. Texas’s interest in protecting children from sexually explicit content is undoubtedly important, even compelling. Age verification represents a traditional, widely-accepted method of reconciling children’s protection with adults’ access rights; similar requirements exist for in-person purchases of sexual materials and numerous other age-restricted products. The specific methods H.B. 1181 permits (government ID and transactional data) are established verification methods already used by pornographic websites and other industries. The law need not adopt the least restrictive means available, and Texas’s decision to initially target websites with higher concentrations of sexual content while excluding search engines represents a reasonable legislative choice that survives intermediate scrutiny. Justice Elena Kagan authored a dissenting opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, arguing that strict scrutiny should apply because H.B. 1181 directly burdens adults’ access to protected speech based on its content, and that the majority’s creation of a new “partially protected” speech category contradicts four prior Supreme Court precedents applying strict scrutiny to similar laws.