By FOCUS, A Leonine Business
The U.S. Supreme Court recently issued a decision in Free Speech Coalition v. Paxton upholding a landmark Texas law that requires pornographic websites to verify users are 18 or older before granting access. The bill, HB 1181, which passed in 2023, applies this age verification requirement to any website where more than one-third of content is deemed harmful to minors. If a commercial entity knowingly violates the law, the state attorney general may sue to enjoin the violation and recover civil penalties. Before the law could take effect however, Judge David Alan Ezra issued an injunction blocking the state from enforcing the law noting that the law likely violated the first amendment. The state then appealed to the Fifth Circuit Court of Appeals which ultimately vacated Judge Ezra’s order as it related to the age verification provisions, SCOTUS Blog reports. At least 21 states – Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wyoming – have passed similar laws.
The case centered on the correct standard for review, specifically whether the Fifth Circuit should have used the rational basis for review or the strict scrutiny standard favored by the law’s challengers. In a 6-3 ruling, the court instead held that the law did not violate the first amendment, applying an intermediate scrutiny standard because it “only incidentally burdens the protected speech of adults.” Writing for the majority, Justice Clarance Thomas noted that “under intermediate scrutiny, a regulation is adequately tailored so long as the government’s interest ‘would be achieved less effectively absent the regulation’ and the regulation ‘does not burden substantially more speech than is necessary to further that interest.’” The opinion notes that “under this standard requiring age verification online is a plainly legitimate legislative choice.
In a dissenting opinion authored by Justice Elana Kagan, joined by the rest of the court’s liberal minority, she wrote that “no one doubts that states have a compelling interest in shielding children from speech of that kind,” noting that children have no constitutional right to view it. The dissent notes that for adults it is constitutionally protected speech and that in prior cases strict scrutiny was applied. The opinion continues, “Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so. That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny.”
In a statement Texas Republican Attorney General Ken Paxton called the decision a major victory for children, parents, and the ability of states to protect minors from the damaging effects of online pornography.” Meanwhile the Electronic Frontier Foundation noted that they expect “some states to push the envelope in terms of what content they consider ‘harmful to minors’ and to expand the type of websites that are covered by these laws. FOCUS will continue to monitor developments on age verification legislation in state legislatures across the country.
by Austin Young 7/7/25
