July 31, 2025
Free Speech Coalition, Inc. v. Paxton, 606 U.S. ____ (2025) (Thomas, J.)
Response by Mary Anne Franks
Geo. Wash. L. Rev. On the Docket (Oct. Term 2024)
Slip Opinion | SCOTUSblog
Free Speech Coalition v. Paxton: The Supreme Court Pretends to Think of the Children
There is longstanding, widespread agreement that minors should not have access to certain forms of sexually explicit material that is constitutionally protected for adults. There is considerable debate, however, about how to effectively restrict minors’ access to such material without also greatly burdening adults’ access to it. Texas’s recent legislative attempt to accomplish these goals, H.B. 1181, fails on both fronts. The law, which requires certain online websites that contain sexually explicit material to adopt age verification measures, closely resembles laws that the Supreme Court has previously invalidated on First Amendment grounds. In those cases, Reno v. ACLU, 521 U.S. 844 (1997) and Ashcroft v. ACLU, 542 U.S. 656 (2004), the Supreme Court recognized that although protecting children from pornographic material was a laudable and legitimate goal, the measures proposed to do so must meet rigorous standards of effectiveness and narrowness, also known as strict scrutiny, to avoid violating the First Amendment. The Court has historically refused to simply concede to overwrought demands to “think of the children” when reviewing the constitutionality of government restrictions of controversial speech. But in Free Speech Coalition v. Paxton, 145 S. Ct. 2291 (2025), the Court abruptly changed course, jettisoning precedent, principle, and logic on the pretense of protecting children.
H.B. 1181 has been characterized as a law requiring hardcore pornography websites to verify that users are eighteen years or older before accessing their content.1 So described, the law sounds eminently reasonable, similar to in-person age verification requirements for access to other adult-appropriate products such as liquor, lottery tickets, and fireworks. Although nonobscene pornography is protected by the First Amendment, the Court has recognized since Ginsberg v. New York, 390 U.S. 629 (1968) that some speech that is constitutionally protected for adults may be harmful to minors and thus regulated more extensively. Restricting children’s access to some forms of sexually explicit content, especially content that is extremely graphic, violent, or dehumanizing, is a compelling government interest.
But Texas’s age verification law is so arbitrary, over- and under-inclusive, and vague that it utterly fails to advance this interest. Indeed, in the opinion of child safety experts such as the International Centre for Missing & Exploited Children (“ICMEC”), the law will drive more minors to more extreme forms of graphic sexual content while depriving them of access to nonpornographic and potentially valuable content.2
H.B. 1181 applies to commercial websites that “knowingly and intentionally publish[] or distribute[] . . . sexual material harmful to minors,” if such material constitutes more than one-third of the sites’ content.3 Setting aside the considerable challenges of meaningfully calculating what constitutes “one-third” of a site’s content at any time, the statute’s definition of “sexual material harmful to minors”—a questionable modification of the already questionable Miller obscenity test4— gives rise to serious vagueness and overbreadth issues, especially in light of recent conservative attempts to characterize LGBTQI+ content as inherently pornographic.5
The law is also bafflingly under-inclusive. H.B. 1181 does not restrict children from accessing any site that intentionally publishes even the most violent, sadistic, explicit pornography so long as that site also publishes a high volume of other content. A site could, for example, publish one violent gang rape video per every four funny cat videos and remain accessible to children without restriction under the Texas law.6 The law also does nothing to prevent children from accessing graphic pornography on the majority of social media sites, even if it constitutes 100% of the content on these sites, because the content on social media sites by definition is user-generated rather than “knowingly and intentionally published” by the site itself. The law also does not apply to search engines, so children remain free to search for the most violent and extreme pornographic content the global Web has to offer without restriction. Minors can also easily circumvent H.B. 1181’s age verification requirements with fake IDs, parents’ identifying information, or widely accessible and user-friendly location-masking technology such as VPNs.7
Of course, no law is perfect, and it could be argued that a law that keeps some children from some harmful material is better than nothing. But as expressed in the amicus brief submitted by ICMEC, “While protecting children from age-inappropriate material is a legitimate government interest, the cure must not be worse than the disease. But that is precisely the outcome that H.B. 1181 invites. ‘In effect, the attempt at harm reduction may instead inadvertently became a source of harm proliferation.’”8 Rather than deter children from accessing sexually explicit content, H.B. 1181 will divert them to the darkest and most unregulated corners of the Internet to find it.
Texas’s age-verification requirement will, however, deter some adults from accessing constitutionally protected speech. Under H.B. 1181, users must “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,” conducted either by the covered website itself or a third-party service.9 That is, adults who wish to access fully protected speech on websites that contain the requisite threshold amount of obscene-for-minors content must disclose sensitive personal information to a commercial entity before doing so. Supporters of the Texas law liken online age verification to age verification requirements for adults-only establishments and products, but handing over one’s driver’s license for a brief birthdate check is very different from supplying personal identifying information to an online commercial entity. This kind of information can easily be exploited by data brokers, hackers, and other bad actors, subjecting individuals to the risk of fraud, extortion, harassment, and other forms of abuse.
H.B. 1181 thus imposes a significant burden on the First Amendment right of adults to access information solely based on the content of that information. This is a direct regulation of constitutionally protected speech, and as such triggers strict scrutiny: In order to comport with the First Amendment, the law must serve a compelling governmental purpose without suppressing more speech than necessary to serve that purpose.
Although not truly “fatal in fact,” strict scrutiny is a high bar. Given H.B. 1181’s serious flaws, it is not surprising that Texas sought to convince the Court to instead apply the rational basis standard, the most deferential level of judicial review. It is also not surprising that the Court rejected that position. What is surprising is that the Court, faced with the unavoidable conclusion that H.B. 1181 could not survive the standard clearly required by its precedents, simply decided not to apply that standard. Instead, the Court engaged in extraordinary contortions of law and logic to justify the application of intermediate scrutiny instead and declare it satisfied. As the dissent dryly noted,
The usual way constitutional review works is to figure out the right standard (here, strict scrutiny because H. B. 1181 is content-based), and let that standard work to a conclusion. It is not to assume the conclusion (approve H. B. 1181 and similar age verification laws) and pick the standard sure to arrive there. But that is what the majority does.10
This kind of blatant reverse engineering to arrive at an ideologically preferred outcome is a hallmark of the Roberts Court, but it is particularly jarring to see the Justices betray their own clearly stated prior positions in their eagerness to validate authoritarian practices. Justice Kagan’s dissent in Free Speech Coalition quotes Justice Thomas’s concurrence from Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 581 (2001): “‘[T]he governmental interest in protecting children from harmful materials’ does not ‘justify an unnecessarily broad suppression of speech addressed to adults.’”11 In Free Speech Coalition, however, Justice Thomas maintained that speech harmful to children is only “partially protected speech” for adults, and requiring adults to provide sensitive, personally identifying information before they can access that speech is merely an “incidental” restriction of their First Amendment rights.12 This is a momentous shift in First Amendment interpretation that will have far-reaching implications. The Supreme Court’s ruling in Free Speech Coalition v. Paxton does very little to advance the legitimate goal of keeping violent and exploitative pornography away from children, but it does much to advance the power of the government to keep many kinds of other speech away from everyone.
Mary Anne Franks is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at the George Washington University Law School. Dr. Franks is an internationally recognized expert on the intersection of civil rights, free speech, and technology.
Recommended Citation
Mary Anne Franks, Free Speech Coalition v. Paxton: The Supreme Court Pretends to Think of the Children, Geo. Wash. L. Rev. On the Docket (July 31, 2025), https://www.gwlr.org/fsc-v-paxton-the-court-pretends-to-think-of-the-children.
