Supreme Court Upholds Texas Age Verification Law in Major Free Speech Decision

By: Kiara Jocelyn Patiño Navarro, J.D. Santa Clara School of Law

The U.S. Supreme Court’s 6–3 decision in Free Speech Coalition, Inc. v. Paxton, 606 U.S. ___ (2025) marked a pivotal moment in First Amendment jurisprudence in regulating how adults can access protected speech. The Court upheld Texas’s H.B. 1181, a 2023 law that regulates access to sexually explicit material online. HB 1181 requires commercial websites, whose content is more than one-third sexual material deemed harmful to minors, to implement age-verification systems and prominently display health warnings.

The ruling signals a shift in the Court’s approach to content regulation in the digital era, upholding a state measure aimed at protecting children from online pornography while limiting First Amendment protections for adult access.

What Does H.B. 1181 Entail?

H.B. 1181 applies to commercial entities, including websites and social media platforms, that “publish or distribute material on an Internet website, more than one-third of which is sexual material harmful to minors.” Tex. Civ. Prac. & Rem. Code Ann. §129B.002(a). It requires these entities to use age-verification tools, such as government-issued ID or commercial transactional data to restrict access to adults. The law also mandates that covered websites display health warnings about the alleged harms of pornography to minors.

Notably, the statute adopts a child-centric adaptation of the obscenity test of Miller v. California, 413 U.S. 15 (1973), as perceived by minors, rather than adults. The Supreme Court recognized the statute is within the state’s traditional authority to restrict minors’ access to material deemed “harmful to minors.” The Miller test is used to determine when material is legally obscene and unprotected by the First Amendment. A work is obscene if: (1) the average person, applying contemporary community standards, would find it appeals to prurient (sexual) interest; (2) it depicts or describes sexual conduct in a patently offensive way as defined by law; and (3) taken as a whole, it lacks serious literary, artistic, political, or scientific value. All three prongs must be met for the material to be considered obscene (Id. at 24–25).

Majority Opinion – Texas Exercised Constitutional State Power

Justice Clarence Thomas, writing for the majority (joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), held that the law was a constitutional regulation under the First Amendment because it does not directly regulate protected adult speech and instead targets “obscenity for minors” which is not protected.

The Court determined that any burden on adult access to legal sexual content is merely incidental, “adults have no First Amendment right to avoid age verification.” (Paxton, slip op. at 33). The Court provided that age verification in person “performs the same critical function online … requiring age verification remains an ordinary and appropriate means of shielding minors in the digital age from material that is obscene to them.” (Id. at 17).

Instead of applying strict scrutiny, which historically has restricted content-based regulation of First Amendment speech, the Court used intermediate scrutiny. The reasoning was that the law only incidentally burdens adults’ rights while serving the important governmental interest of protecting children.

Under this standard, the Court held that the Texas law is narrowly tailored and that it does not burden substantially more speech than necessary (Id. at 3).

The Court distinguished from the precedents of Reno v. ACLU, 521 U.S. 844 (1997), Ashcroft v. ACLU, 542 U.S. 656 (2004), Playboy Ent. Group v. United States, 529 U.S. 803 (2000), and Brown v. Ent. Merchants Ass’n, 564 U.S. 786 (2011), which it considered to involve outright or suppressive bans to lawful adult content.

The Court warned that applying strict scrutiny to a law like H.B. 1181 “would call into question all age-verification requirements, even longstanding in-person requirements” (Paxton, slip op. at 19).

Dissenting Opinion – The Law is Content-Based & Burdening Adult Rights

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, warning that Texas’s law directly targets protected speech based on content and thus warrants strict scrutiny. The dissent argued that the regulation was not merely incidental, because it imposes a significant burden on adults in forcing them to submit personal information in order to access legal content.

“The Constitution requires a more rigorous form of review when the government conditions access to speech on self-identification,” the dissent argued, pointing to privacy concerns, the chilling effect on adult viewers, and the potential for data breaches (Paxton, slip op., Kagan, J., dissenting, at 4–6).

The dissenters also emphasized that the Court in Reno, Ashcroft, and Playboy applied strict scrutiny to similar online speech regulations, and that Texas’ law should be treated no differently. Additionally, they suggested that there are less intrusive alternatives like content filters or parental controls.

What is the Way Forward for Online Platforms Affected by this Ruling?

Online companies in the United States can look at how companies in the United Kingdom are implementing controls to prevent access to pornographic content by minors. Starting July 25, 2025, all UK porn websites are required to implement age verification checks, such as requesting photo ID or running credit card checks before users can view sexually explicit material.

Likewise, social media sites will need to be increasingly on guard regarding sexually explicit material as the Texas law applies to sites that have content that is more than one third sexually explicit material. Youth-led nonprofit, Design It For Us, and watchdog organization, Accountable Tech, investigated teen exposure to age-inappropriate content. The organization tested five fake Instagram teen accounts on the app’s default Teen Account settings over a two-week period and found that in all cases the youth accounts were recommended sexual content by the platform. The investigation found “[m]ost of the content flagged by our participants was overtly sexual and clearly depicted an act or body part, while some content used coded or trending language to represent a sexual act.”

Additionally, pornographic and other affected sites will need to invest in data security to give users confidence to use their sites. The Brazzers data leak in 2016 exposed almost 800,000 users’ email addresses, user names and passwords spelled out in plain text.

One can imagine that dark web pornographic sites may see an increase in demand if adults do not feel comfortable giving sites their government documents in order to access sexually explicit content. Minors may potentially become more inclined to either use their parent’s ID or choose to use dark websites which can result in more dangerous consequences.