The Supreme Court upheld Texas’s H.B. 1181, a law requiring commercial websites that distribute sexually explicit content to verify that users are at least 18 years old. The law targets material considered obscene for minors but not necessarily for adults. Petitioners representing the pornography industry challenged the statute as a violation of the First Amendment, arguing it burdens adults’ access to protected speech.
The Court held that H.B. 1181 is subject to intermediate scrutiny because it only incidentally burdens adults’ access to protected speech. The law does not directly restrict adults from accessing sexual content but rather requires age verification as a means to prevent minors from viewing material deemed harmful to them. The Court emphasized that states have a longstanding authority to protect children from sexually explicit content and that requiring proof of age is a traditional and appropriate method, similar to age checks for alcohol or firearms.
The opinion noted that applying strict scrutiny would threaten the legitimacy of all age-verification requirements, including those used in physical stores, which have long been considered constitutional. The Court found that H.B. 1181 advances the important government interest of shielding children from sexual content and is tailored to that interest by using established verification methods such as government-issued identification or transactional data. The Court rejected arguments that less restrictive alternatives were required, clarifying that intermediate scrutiny does not demand the least restrictive means.
The distinction between strict and intermediate scrutiny proved crucial to the outcome and broader implications of this case. Under strict scrutiny, the most demanding standard of constitutional review, laws affecting fundamental rights must serve a compelling government interest and be narrowly tailored using the least restrictive means possible. Courts applying this standard presume laws are unconstitutional and require the government to justify every aspect of the restriction. By contrast, intermediate scrutiny requires only that laws serve an important government interest and be substantially related to achieving that interest, without demanding the least restrictive approach. This lower standard makes it significantly easier for governments to defend speech restrictions, as courts applying intermediate scrutiny presume laws are constitutional and place the burden on challengers to prove otherwise. The Court’s choice of intermediate scrutiny essentially signals that age verification requirements will face a more permissive judicial review, making similar laws more likely to survive constitutional challenges and encouraging states to adopt broader restrictions on online speech.
Justice Thomas wrote for the majority, joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh and Barrett. Justice Kagan dissented, joined by Justices Sotomayor and Jackson. The decision affirms the state’s ability to require age verification online to protect minors, even if it imposes incidental burdens on adults’ access to certain speech.
The Supreme Court’s decision reflects and reinforces a growing national trend toward age verification requirements for adult content online. Texas is now one of 17 states that require websites with adult content to verify the age of users to block minors, and if these laws are allowed to stand, more proposals could pass this session. The ruling is expected to encourage additional states to pursue similar legislation, as the Court’s endorsement of intermediate scrutiny for these laws provides a clearer constitutional framework that states can follow when crafting their own age verification requirements. This decision effectively validates the constitutional approach taken by the growing number of states that have enacted such measures, potentially accelerating the adoption of similar laws across the country as legislators gain confidence in their ability to withstand First Amendment challenges.
The ruling has significant implications for both the pornography industry and broader free speech protections. Free speech advocates argue that the decision ultimately means that laws can restrict the free speech of adults in service of protecting children. Critics contend that age verification requirements still raise serious privacy and free expression concerns and that not only do these laws infringe on protected speech, they won’t even work at accomplishing their stated goal of stopping young people from viewing adult content. The broader concern among civil liberties groups is that porn has long been the canary in the coal mine for other restrictions against free speech, suggesting that age verification requirements for adult content could serve as a precedent for similar restrictions on other forms of protected speech online.