In a 6–3 decision issued Friday in Free Speech Coalition v. Paxton, the Supreme Court upheld a Texas law requiring pornographic websites to verify users’ ages before granting access. With similar laws now on the books in at least 21 other states, the ruling empowers state authorities to shield children from sexually explicit online materials—and may also open the door to regulating minors’ access to social media.
Texas passed H.B. 1181, the law at issue in this case, in 2023, motivated by the growing concerns about the risks today’s digital environment poses to children (as I discussed in City Journal last fall). The law permits several ways to meet the age-verification requirement, including any “commercially reasonable method that relies on public or private transactional data to verify the age of an individual.”
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A group of pornography companies and an adult performer sued, arguing that H.B. 1181 amounts to a content-based restriction on speech and therefore triggers “strict scrutiny”—the most demanding form of judicial review, which is almost always fatal to the government’s case.
Plaintiffs relied on the Court’s 2004 decision in Ashcroft v. American Civil Liberties Union, where the majority held that strict scrutiny applied to a similar federal statute because it imposed a content-based restriction on adults’ access to protected speech. In that case, the Court struck down age-verification requirements, reasoning that available filtering and blocking technologies—such as parental controls—were a less restrictive means of protecting children from harmful sexual material online.
Texas countered that H.B. 1181’s age-verification requirements are directly analogous to in-person age checks. In Ginsberg v. New York (1968), the Court held that such checks were subject only to rational-basis review—the most deferential standard—because the law regulated minors’ access to material the state deemed harmful to them. The Supreme Court granted review last year to resolve the narrow question of which standard of review should apply.
The Court’s decision on Friday rejected both arguments. It held that laws like Texas’s are subject to “intermediate scrutiny,” a standard requiring that the law serve important government interests unrelated to the suppression of speech and not burden substantially more speech than necessary to achieve those interests.
The majority did not apply strict scrutiny because H.B. 1181—unlike the laws at issue in prior cases—does not amount to a ban on adult access to such content and imposes only an incidental burden arising from the state’s legitimate exercise of power. “The only principled way to give due consideration to both the First Amendment and States’ legitimate interests in protecting minors is to employ a less exacting standard,” Justice Clarence Thomas wrote.
Instead of remanding the case to the lower courts to determine whether H.B. 1181 meets intermediate scrutiny, the Court conducted the analysis itself—and found that neither prong posed a substantial hurdle. Precedent has long established that the state’s interest in protecting children from harmful sexual material is not only important but compelling.
Evaluating the age-verification methods in H.B. 1181, the Court found them “plainly legitimate.” As a result, state laws that permit verification through government-issued ID or a commercially reasonable method relying on transactional data will likely pass muster under intermediate scrutiny.
This aligns with the amicus brief the Manhattan Institute filed in November, where we explained that today’s age-verification methods—such as zero-knowledge proofs (ZKPs) and biometric age verification—can confirm users’ ages quickly and at minimal cost. These tools can issue a digital token simply verifying that a user is over 18, without revealing additional personal information, thereby minimizing privacy concerns.
Because most state age-verification laws include similar commercially reasonable alternatives, the Court’s decision effectively authorizes the use of modern verification technologies nationwide. Unlike the Ashcroft ruling, which required states to use the least restrictive means to shield children from explicit content, the Free Speech Coalition majority gives states far more flexibility.
The opinion even suggested it would uphold more restrictive approaches than Texas’s, noting in a footnote: “Texas is not required to adopt the least restrictive means of advancing its interests to pass intermediate scrutiny.”
Justice Elena Kagan’s dissent, by contrast, would have applied strict scrutiny, though she suggested that H.B. 1181 might still survive it. Even so, applying strict scrutiny would have significantly limited states’ flexibility to keep pace with technological change and invited further litigation. The majority’s opinion instead demonstrates a healthy reluctance to interfere with state efforts to regulate children’s access to potentially harmful material online.
Free Speech Coalition thus reflects a pragmatic recognition of the Internet’s contemporary dangers for children. As the majority observed, “with the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content—both benign and obscene—at almost any time and place, with an ease that would have been unimaginable” when the Court decided its earlier precedents.
The next frontier in this area will likely be laws regulating children’s social-media access. States like Ohio and Arkansas have passed laws that require age verification and parental consent for minors seeking to access social media platforms. Federal district courts enjoined Arkansas’s law in March and Ohio’s in April.
Social media differs from pornography insofar as states have traditionally regulated porn, and courts have distinguished between pornographic access for minors and adults. But a mounting body of scientific evidence shows that social media poses serious risks to minors’ mental health, making it analogous to pornography’s harms. States have the prerogative to protect children from these dangers, too.
If the reasoning in Free Speech Coalition applies to future cases involving social media, state laws regulating minors’ access to those platforms will likely face intermediate scrutiny. A key question for courts will be whether such laws, which target access to non-obscene content, serve important governmental interests.
The harms children face online are more widespread and better understood than ever. Free Speech Coalition gives states the legal tools to respond.
Photo by Joe Raedle/Getty Images