The Supreme Court upheld a Texas law that requires age verification to access a pornographic website, stating it “only incidentally” burdens the free speech of adults. The 6-3 decision in Free Speech Coalition v. Paxton fell along ideological lines, with the court’s conservatives in the majority and the liberals in the minority.
What does the court’s decision say?
Justice Clarence Thomas wrote for the majority: “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.”
“The power to verify age is part of the power to prevent children from accessing speech that is obscene to them,” Thomas continued.
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The court ruled it is appropriate to use intermediate scrutiny when analyzing whether the law is constitutional, rather than the strict scrutiny that is normally applied in free speech cases like this one.
What is constitutional review?
When evaluating the constitutionality of a government action, a court can apply one of three levels of review: rational-basis, intermediate scrutiny and strict scrutiny.
According to Cornell Law School, strict scrutiny is the highest standard of review and is used to determine the constitutionality of a government action when a fundamental right is burdened, which in this case is freedom of speech.
If a court determines strict scrutiny applies, it presumes the government’s action is unconstitutional and the burden is on the government to prove its actions are constitutional. To prove that, the government must show its actions were “narrowly tailored,” furthered a “compelling government interest,” and were the “least restrictive means” possible.
The Supreme Court has ruled on multiple occasions that states may restrict minors’ access to sexually explicit materials, but if those restrictions burden an adult’s access, then they must withstand strict scrutiny.
In this case, however, the 5th Circuit Court of Appeals applied rational-basis review. That test is typically only used when there are no fundamental rights at issue and only requires the state to have a “rational connection” between its statute and its goals.
The justice ruled instead that intermediate review is appropriate.
“Adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court’s precedents,” Thomas wrote.
What did the minority say?
Justice Elena Kagan wrote for the minority that court precedent clearly dictates strict scrutiny should be applied in these types of cases. She described that as a “highly rigorous but not fatal form of constitutional review.”
“Adults have a constitutional right to view the very same speech that a State may prohibit for children. And it is a fact of life—and also of law—that adults and children do not live in hermetically sealed boxes,” Kagan wrote. “In preventing children from gaining access to ‘obscene for children’ speech, States sometimes take measures impeding adults from viewing it too—even though, for adults, it is constitutionally protected.”
History of the Texas age verification law
The Texas legislature passed HB 1181 in 2023. The law requires pornographic websites to display a substance abuse and mental health services hotline and a warning that porn is potentially addictive and proven to harm brain development.
The law also imposes a $10,000 fine for each day a site does not check identification, for each instance it wrongly retains identifying information, and a $250,000 fine for each minor who accesses explicit material.
The issue here was whether the requirements to provide a government-issued or other official form of identification for age verification impeded on the free speech rights of those over 18. States are already allowed to restrict the content for minors.
