Free Speech Coalition v. Paxton: Ruling, Kagan Dissent, Limits

In Free Speech Coalition v. Paxton, decided June 27, 2025, the Supreme Court upheld a Texas law requiring commercial pornography websites to verify that their visitors are adults. The 6–3 ruling, written by Justice Clarence Thomas, held that online age-verification mandates are evaluated under intermediate scrutiny rather than the stricter standard the Court had applied to earlier internet speech laws. The decision clears a constitutional path for more than twenty similar state laws already on the books.¹

What the Court Held

Justice Thomas was joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett. The majority affirmed the Fifth Circuit’s judgment but rejected its reasoning. The Fifth Circuit had applied rational-basis review; the district court, before it was reversed, had applied strict scrutiny. The Supreme Court chose the middle path, ruling that intermediate scrutiny is the correct standard for laws that require adults to prove their age before accessing sexually explicit material online.¹

Under that standard, Texas’s H.B. 1181 survives. The Court found the law advances an important government interest unrelated to suppressing speech and does not burden substantially more expression than necessary. Thomas wrote that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.”²

The Texas Law at the Center of the Case

H.B. 1181, signed by Governor Greg Abbott in June 2023 and effective September 1, 2023, applies to commercial websites where more than one-third of the content qualifies as “sexual material harmful to minors” under the Miller obscenity framework. Covered sites must use “reasonable age verification methods” — either a digital government-issued ID or a commercial verification system relying on government ID or transactional data — before allowing access. Websites and their verification vendors are prohibited from retaining identifying information after access is granted.³

Penalties are steep. The Texas attorney general can seek civil fines of up to $10,000 per day for noncompliance and up to an additional $250,000 if a minor accesses covered material because of a violation. Parents and guardians can sue for damages and attorney’s fees.¹

The Free Speech Coalition, a trade association for the adult entertainment industry, along with several website operators and a performer, challenged the law shortly after it passed. The ACLU joined as counsel.⁴

How the Majority Got There

The majority’s analysis leaned on Ginsberg v. New York (1968), which upheld a state law barring the sale of sexually explicit magazines to minors and endorsed the concept of “variable obscenity” — the idea that material can be constitutionally obscene as to children while remaining protected for adults. Ginsberg recognized that state interests in the welfare of minors “reach beyond the scope of its authority over adults.”⁵

From that starting point, Thomas reasoned that the state’s power to keep such material away from minors necessarily includes the “ordinary and appropriate means” of enforcing that limit. Age verification, in the majority’s telling, is one of those means, comparable to the ID checks that gate alcohol, tobacco, and firearm purchases. Because adults can still access the content once they verify their age, the majority described the burden on adult speech as “incidental.”¹

That framing let the Court distinguish two precedents that had cut the other way. In Reno v. ACLU (1997) and Ashcroft v. ACLU (2004), the Court struck down federal online speech restrictions under strict scrutiny. The majority in Paxton characterized those laws as broad bans that suppressed speech for adults and minors alike, decided at what Thomas called the “dawn of the internet age.” H.B. 1181, by contrast, does not prohibit any speech; it conditions access on proof of age.¹

The challengers had argued that parental filtering software would be a less restrictive alternative capable of achieving the same goal. The majority rejected that argument on doctrinal grounds: intermediate scrutiny does not require the state to select the least restrictive means. The Court found the verification methods Texas authorized — government-issued ID and transactional data — to be “plainly legitimate.”¹

The Kagan Dissent

Justice Elena Kagan dissented, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. The dissenters argued that H.B. 1181 is a content-based regulation that directly burdens adults’ access to constitutionally protected speech and should therefore trigger strict scrutiny.⁶

Kagan wrote that the majority had invented a “partially protected” speech category at odds with four prior Supreme Court decisions applying strict scrutiny to comparable restrictions. She emphasized that the First Amendment prevents the government from making protected speech merely “hard” to reach, not just from banning it outright. Requiring adults to hand over identifying information to access lawful content is a meaningful barrier, in her view, not a passing inconvenience.²

Kagan did not conclude the Texas law would necessarily fail under strict scrutiny. She wrote that strict scrutiny “need not be a death sentence” and argued the tailoring question — whether Texas limited no more adult speech than necessary — deserved to be answered under the tougher standard.²

Why the Scrutiny Standard Matters

The choice between strict and intermediate scrutiny is the whole ballgame. Strict scrutiny puts the government to a demanding proof: the law must serve a compelling interest and be the least restrictive way to serve it. Intermediate scrutiny asks only whether the law advances an important interest and does not burden substantially more speech than necessary. For nearly thirty years, Reno and Ashcroft had made strict scrutiny the assumed standard for federal efforts to shield minors from online sexual material, and the government’s inability to rule out less restrictive alternatives — filtering software, most prominently — kept striking those laws down.

Paxton reframes the question. By treating age verification as an incidental consequence of the state’s legitimate power over what minors can see, the majority moved these laws out of the strict-scrutiny track that had defeated their predecessors.¹

Scholars have read the shift differently. The Harvard Law Review described the decision as being of “limited impact,” reasoning that its logic depends on the uniquely dual status of sexually explicit material — unprotected for minors, protected for adults — and cannot easily extend to categories like violent media, which the Court refused to classify as obscene for minors in Brown v. Entertainment Merchants Association (2011).² Writing in the George Washington Law Review, Professor Mary Anne Franks called the ruling a “momentous shift in First Amendment interpretation” that advances the government’s power to restrict speech under the banner of child protection.⁷

What It Means for Other States

The Court’s opinion itself noted that at least 21 other states have passed materially similar age-verification laws. Louisiana enacted the first; Virginia, Utah, Arkansas, Florida, Indiana, and Montana are among those that followed.¹ With intermediate scrutiny now the settled standard, constitutional challenges to those laws face much longer odds. The Cato Institute has counted 25 states with age-verification laws for sexually explicit websites and two more actively considering them.⁸

The ruling has also shaped the federal debate. A House subcommittee recently considered 19 digital media bills focused on child online safety, including the SCREEN Act, which would impose age verification for sexually explicit content, and the App Store Accountability Act, which would require app stores to verify user ages and obtain parental consent for minors. The 2025 version of the Kids Online Safety Act directs agencies to study device-level verification rather than mandating it outright.⁹

How the Industry Has Responded

Much of the adult industry’s response predates the Supreme Court ruling. Rather than build the verification system H.B. 1181 requires, Pornhub’s parent company Aylo blocked Texas users starting in March 2024, redirecting them to a landing page protesting the law. Aylo called the state-mandated approach “ineffective” and argued that “the only effective solution is to verify users’ age on their devices.”¹⁰¹¹

In February 2024, Texas Attorney General Ken Paxton sued Aylo for violating H.B. 1181, seeking $1.6 million in fines. His office later sued Multi Media, LLC, the operator of Chaturbate, and Hammy Media, the operator of xHamster, for the same failure.¹² By January 2025, Pornhub had blocked users in at least 20 states with similar laws on the books.¹¹

Civil liberties groups condemned the decision. The ACLU called it a departure from “decades of settled precedents” and accused the Court of creating an “unprincipled pornography exception to the First Amendment.” Cecillia Wang, the ACLU’s national legal director, said the ruling weakens protections for adult access to constitutionally protected material online.¹³ The Electronic Frontier Foundation focused on privacy exposure, arguing that verification mandates force users to upload sensitive documents to websites and leave them “highly vulnerable to data breaches.” EFF predicted that many platforms would block users in affected states rather than assume the compliance cost and legal risk.¹⁴ Alison Boden, executive director of the Free Speech Coalition, called the ruling “disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”

The Limits of the Ruling

Paxton is narrow in one important respect: it addresses websites where more than one-third of content is sexually explicit material harmful to minors. It does not resolve whether states can require age verification for search engines, social media, or general-audience platforms. The majority noted that Texas reasonably declined to extend H.B. 1181 to those services, but stopped short of saying a broader law would necessarily be unconstitutional.¹

That silence has become the next battleground. Some states have moved to require age verification for social media, raising First Amendment questions Paxton did not answer.⁸ EFF has said it will continue challenging broader age-restriction laws, particularly those aimed at social media, and maintains that Paxton should not be read as authorizing blanket age-gating for general-audience sites.¹⁴

A separate line of concern focuses on how the “harmful to children” rationale might be applied to non-pornographic speech. Writing in the Yale Law Journal, Professor Carlos A. Ball warned that the Paxton framework could be leveraged to target LGBTQ speech. He documented legislative efforts in Florida, Arkansas, and Ohio classifying discussions of sexual orientation or “gender ideology” as “sexual content,” and pointed to the federal “Stop the Sexualization of Children Act,” introduced in 2022, which would have defined content involving “gender identity, gender dysphoria, transgenderism, [or] sexual orientation” as “sexually oriented material.”¹⁵

The Harvard Law Review analysis pushed back on that concern, arguing that the majority’s logic is tethered to sexually explicit material specifically because it occupies a unique constitutional category — unprotected for minors, protected for adults — and that Brown v. Entertainment Merchants Association forecloses easy expansion to violent or other controversial content absent a dramatic doctrinal shift.² Whether Paxton stays confined to the material it directly addresses, or becomes the template for a broader restructuring of online speech regulation, is the question the next round of litigation will answer.

1
U.S. Supreme Court. Free Speech Coalition, Inc. v. Paxton, 606 U.S. ___ (2025)
2
Harvard Law Review. Free Speech Coalition, Inc. v. Paxton
3
Texas Legislature Online. H.B. No. 1181 Bill Text
4
ACLU. Free Speech Coalition, Inc. v. Paxton
5
Justia. Ginsberg v. New York, 390 U.S. 629 (1968)
6
Oyez. Free Speech Coalition, Inc. v. Paxton
7
The George Washington Law Review. FSC v. Paxton: The Court Pretends to Think of the Children
8
Cato Institute. What Happens Next for Age Verification After Free Speech Coalition v. Paxton
9
Davis Wright Tremaine. Federal Online Safety Legislation Hits Congress
10
Fox 6 Now. Pornhub Disables Texas Access to the Site
11
404 Media. Pornhub Blocked Texas
12
Office of the Texas Attorney General. Attorney General Ken Paxton Sues Two More Pornography Companies Violating Texas Age Verification Law
13
ACLU of Texas. ACLU Comment on Supreme Court Decision in Free Speech Coalition v. Paxton
14
Electronic Frontier Foundation. The Supreme Court’s Decision on Age Verification Tramples Free Speech and Undermines Privacy
15
Yale Law Journal. Harmful to Children Claims and the Targeting of LGBTQ Speech After Free Speech Coalition v. Paxton