Free Speech Coalition, Inc. v. Paxton

Background

Texas passed H.B. 1181 in 2023 to stop minors from accessing sexually explicit material on certain commercial websites. The law covers sites where more than one-third of content is defined as sexual material harmful to minors and requires age verification before access. The Texas attorney general can seek injunctions and civil penalties up to $10,000 per day and up to $250,000 if minors access content. Industry groups and a performer sued to block enforcement, and lower courts split on the proper review.

Reasoning

The Supreme Court asked what level of First Amendment review applies. The majority held the law only incidentally burdens adults’ protected access to some sexual speech, so intermediate scrutiny applies rather than strict scrutiny. The Court found age verification a traditional and ordinary means to keep content from children, and said the allowed verification methods—government-issued ID or commercially reasonable transactional data, including third-party services—are legitimate. Applying intermediate scrutiny, the Court concluded the statute advances the important interest of protecting children and is adequately tailored, and it affirmed the Fifth Circuit.

Real world impact

The decision permits Texas and similarly situated States to require covered commercial sites to verify users’ ages online using ID or transactional methods. Site operators may use third-party services or face enforcement by the State attorney general and potential civil penalties. The opinion notes that at least twenty-one other States have enacted similar laws, so the ruling affects many existing and proposed state regulations.

Dissents or concurrances

Justice Kagan dissented, arguing strict scrutiny should apply because the law is content-based and directly burdens adults’ protected speech; she warned the majority departs from prior precedent and would require a stricter justification for such burdens.