Supreme Court Upholds Texas Age-Verification Law

In Free Speech Coalition, Inc. v. Paxton, 606 U.S. ____ (2025), the U.S. Supreme Court upheld a Texas law requiring online publishers with a significant amount of sexually explicit content to verify the age of their users. By a vote of 6-3, the justices held that Texas House Bill 1181 (H.B. 1181) triggers, and survives, intermediate scrutiny review because it only incidentally burdens the protected speech of adults.

Facts of the Case

Texas, like many States, prohibits distributing sexually explicit content to children. In 2023, Texas enacted H.B. 1181, requiring certain commercial websites publishing sexually explicit content that is obscene to minors to verify that visitors are 18 or older. The statute applies to any “commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, …more than one-third of which is sexual material harmful to minors.”

The statute defines “‘[s]exual material harmful to minors’” as material that: (1) “is designed to appeal to or pander to the prurient interest” when taken “as a whole and with respect to minors”; (2) describes, displays, or depicts “in a manner patently offensive with respect to minors” various sex acts and portions of the human anatomy, including depictions of “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, [and] excretory functions”; and (3) “lacks serious literary, artistic, political, or scientific value for minors.”

H.B. 1181 requires a covered entity to “use reasonable age verification methods . . . to verify that an individual attempting to access the material is 18 years of age or older.” To verify age, a covered entity must require visitors to “comply with a commercial age verification system” that uses “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” The entity may perform verification itself or through a third-party service. Knowing violations subject covered entities to injunctions and civil penalties.

Petitioners—representatives of the pornography industry—sued the Texas attorney general to enjoin enforcement of H. B. 1181 as facially unconstitutional under the First Amendment’s Free Speech Clause. They alleged that adults have a right to access the covered speech, and that the statute impermissibly hinders them.

The Fifth Circuit Court of Appeals held that an injunction was not warranted because petitioners were unlikely to succeed on their First Amendment claim. The court viewed H. B. 1181 as a “regulatio[n] of the distribution to minors of materials obscene for minors.” It therefore determined that the law is not subject to any heightened scrutiny under the First Amendment.

Supreme Court’s Decision

The Supreme Court affirmed. “The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” Justice Clarence Thomas wrote on behalf of the majority.

In reaching its decision, the Supreme Court explained that while strict scrutiny applies to laws burdening protected speech, intermediate scrutiny applies to laws that “only incidentally burden” protected speech.In this case, the majority found that H.B. 1181 is an exercise of the state’s “traditional power to prevent minors from accessing speech that is obscene from their perspective.”It went on to further conclude that the law does not actually directly regulate adults’ speech.

“[A]dults have no First Amendment right to avoid age verification, and the statute can readily be understood as an effort to restrict minors’ access,” Justice Thomas wrote. “Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment.”

Applying intermediate scrutiny, the Court went on to find that H.B. 1181 is constitutional. “H.B. 1181 simply requires established verification methods already in use by pornographic sites and other industries. That choice is well within the State’s discretion under intermediate scrutiny,” Justice Thomas wrote.

In further support, the majority noted that H.B. 1181 furthers Texas’s important interest in shielding children from sexual content and is adequately tailored to that interest. It also cited that states have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults’ right to avail themselves of such material. “Because proof of age performs the same critical function online that it does in person, requiring age verification remains an ordinary and appropriate means of shielding minors in the digital age from material that is obscene to them,” Justice Thomas explained.