Facts
- Texas enacted H.B. 1181 (2023), codified in Tex. Civ. Prac. & Rem. Code ch. 129B, regulating commercial websites that publish sexually explicit content and meet a statutory coverage threshold (including a “one-third of content” trigger tied to material “harmful to minors”).
- The statute targets material defined as “harmful to minors,” using a modified obscenity-to-minors standard drawn from the Miller framework as applied to minors (appeal to prurient interest of minors, patently offensive depiction for minors, and lack of serious value for minors).
- For covered websites, Texas required users to verify they are at least 18 years old before accessing the covered content, using “reasonable age verification methods,” such as government-issued identification or other commercially reasonable methods (including use of transactional or digital verification tools).
- The law provided for civil enforcement, including injunctive relief and civil penalties for knowing violations, rather than a blanket ban on adult access to the content.
- Free Speech Coalition, several adult-content businesses, and an adult performer (identified as “Jane Doe”) brought a pre-enforcement facial challenge, alleging that the age-verification requirement violated the First Amendment by burdening adults’ access to lawful speech.
- The U.S. District Court for the Western District of Texas issued a preliminary injunction against enforcement of the age-verification requirement, treating the law as content-based and applying strict scrutiny; it found Texas’s interest compelling but the means insufficiently narrowly tailored.
- The Fifth Circuit vacated the preliminary injunction as to age verification, treating the measure as regulation of distribution of material obscene as to minors and applying rational-basis review. Free Speech Coalition, Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024).
- The Supreme Court granted certiorari to resolve what level of First Amendment scrutiny applies to this kind of online age-verification requirement and whether the Texas law survives that review.
- The Supreme Court affirmed the Fifth Circuit’s judgment, but rejected rational-basis review and instead applied intermediate scrutiny, concluding the requirement only incidentally burdens adults’ access to protected speech.
Issues
- What level of First Amendment scrutiny applies to a state law requiring age verification to access online material that is “harmful to minors” but constitutionally protected for adults.
- Whether Texas’s age-verification requirement survives the applicable First Amendment scrutiny in a facial challenge.
Decision
- The Court held that H.B. 1181’s age-verification requirement triggers intermediate scrutiny, not strict scrutiny and not mere rational-basis review.
- The Court held that the requirement survives intermediate scrutiny because it serves an important governmental interest in protecting minors from harmful sexual material and imposes only an incidental burden on adults, who may still access the content after verifying age.
- The Court affirmed the Fifth Circuit’s judgment (95 F.4th 263).
Legal Principles
- Laws that target protected speech because of its content are generally subject to strict scrutiny, while laws that incidentally burden protected speech may be reviewed under intermediate scrutiny; regulations of wholly unprotected categories (such as obscenity) may receive rational-basis review.
- Sexual material may be unprotected as to minors yet protected as to adults; states may restrict distribution to minors of material “obscene to minors” even when adults have a right to access it. Ginsberg v. New York, 390 U.S. 629 (1968).
- When a law’s primary aim is to restrict minors’ access to material that is unprotected as to them, and the law does not bar adults from accessing the same material, the law can be treated as imposing an incidental burden on adults’ protected speech, triggering intermediate scrutiny rather than strict scrutiny.
- Under intermediate scrutiny (as used in the Court’s access-control analysis), the government must show a substantial or important interest, and that the regulation is appropriately tailored so the burden on speech is not substantially broader than necessary to serve that interest.
- An age-verification requirement that allows adults to obtain access after completing verification, and that is limited to covered commercial sites and permits flexible verification methods, can satisfy intermediate scrutiny when directed at preventing minors’ access to harmful sexual material.
Conclusion
In Free Speech Coalition, Inc. v. Paxton, the Supreme Court upheld Texas’s H.B. 1181 age-verification requirement for covered commercial pornography websites, holding that the law is reviewed under intermediate scrutiny because it targets minors’ access to material harmful to them and only incidentally burdens adults, who remain able to access the speech after verifying age; applying that standard, the Court concluded the measure is sufficiently tailored to Texas’s important interest in protecting children and affirmed the Fifth Circuit’s judgment.