Last Friday, the Supreme Court held in Free Speech Coalition v. Paxton that states can require pornographic websites to verify that users are over 18. States now have much more leeway to ensure that children are protected from internet pornography.
In 2023, Texas introduced the law challenged in Paxton. The law requires pornography websites to verify the age of visitors and prevent minors from accessing obscene content. Texas framed the law as a digital version of age restrictions for brick-and-mortar stores that sell pornographic material.
The Court upheld these in-person age restrictions in the 1968 case Ginsberg v. New York, which involved a New York law that prohibited brick-and-mortar stores from selling pornographic magazines to children. The Court held that the law was constitutional—it protected children without violating adults’ First Amendment rights to view such material.
Although it’s both counterintuitive and ahistorical, the Court has for a long time held that pornography is protected free speech, at least when adults want to access it. For children, on the other hand, pornography is not entitled to protection.
Ginsberg was based on this dichotomy. Adults have a right to access pornography, but because children are more vulnerable, states can restrict children’s access to obscene speech in ways that would be unconstitutional if applied to adults.
But things get complicated when a law that restricts children’s access to pornography has incidental effects on adults’ access.
A group of pornographers—calling themselves the “Free Speech Coalition”—sued, claiming that Texas’ law hampered adults’ ability to exercise their First Amendment right to view sexually explicit content. The theory was that if adults are required to submit identifying information over the internet to access pornography, which could be hacked or leaked to the public, then they might be less eager to look at pornography, which means their free speech rights would be “chilled.”
In short, they argued that a law restricting children’s access to pornography that imposes any secondary burden on adults’ access to pornography is unconstitutional.
The Supreme Court disagreed. Justice Clarence Thomas, writing for the majority, identified “two principles” that dictate how a state can protect children from sexually explicit material: “A State may not prohibit adults from accessing content that is obscene only to minors,” but “it may enact laws to prevent minors from accessing such content.” He concluded that Texas’ age-verification requirement is an “ordinary and appropriate”—and constitutional—way to achieve the latter.
To reach this conclusion, Thomas first determined that Texas’ age-verification law had only an “incidental” effect on adults’ access to protected sexually explicit speech. Although age verification is a burden, it’s small enough that it isn’t a constitutional problem.
Thomas reasoned that Texas’ law “simply requires adults to verify their age before they can access speech that is obscene to children,” but doesn’t cut off their access to such content. Thus, the law “shield[s] children from sexually explicit content” without unconstitutionally restricting adults’ free speech.
The dissent by Justice Elena Kagan, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, argued that the Court analyzed the law under the wrong standard. Thomas applied a judicial standard called intermediate scrutiny, which is difficult but not impossible for laws to survive. Writing for the dissent, Kagan argued that the Court should have applied strict scrutiny instead—a type of review often described as “strict in theory, fatal in fact.”
As Thomas pointed out, in its First Amendment cases, the Supreme Court has upheld only one law under strict scrutiny. This history shows that when a law receives strict scrutiny it’s almost guaranteed to be struck down. Although Kagan claimed that strict scrutiny in this case “need not be a death sentence,” she did not explain whether or how this law or one like it could survive strict scrutiny, which might suggest that she thinks it would not.
Despite the dissenters’ reservations, the Court’s decision in Paxton marks an important step forward in the fight to protect children’s safety online. Twenty-one states have implemented age-verification requirements like Texas’, which gives this decision wide-ranging impact. By upholding the Texas law, the Court gave states a powerful tool to keep children safe by protecting them from harmful, obscene content.
