Justices: Texas anti-porn law doesn’t violate free speech

A Texas law requiring certain websites publishing sexually explicit content to verify that visitors are 18 or older does not violate First Amendment guarantee of freedom of speech, the U.S. Supreme Court ruled 6-3 in affirming a judgment from the 5th Circuit.

The case involves the Texas legislature’s enactment in 2023 of H.B. 1181. The law requires certain commercial websites publishing sexual material “harmful to minors” to verify that visitors are 18 or older. Knowing violations of the statute subject covered entities to injunctions and civil penalties.

Click here to read the full text of the June 27 decision in Free Speech Coalition v. Paxton.

BULLET POINTS: “Because H.B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate the protected speech of adults. A law can regulate the content of protected speech, and thereby trigger strict scrutiny, either ‘on its face’ or in its justification. H.B. 1181 does not regulate the content of protected speech in either sense. On its face, the statute regulates only speech that is obscene to minors. That speech is unprotected to the extent the State seeks only to verify age. And, the statute can easily ‘be justified without reference to the [protected] content of the regulated speech,’ because its apparent purpose is simply to prevent minors, who have no First Amendment right to access speech that is obscene to them, from doing so.

“That is not to say, however, that H. B. 1181 escapes all First Amendment scrutiny. Adults have the right to access speech that is obscene only to minors. And, submitting to age verification is a burden on the exercise of that right. But, adults have no First Amendment right to avoid age verification, and the statute can readily be understood as an effort to restrict minors’ access. Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment. That fact makes intermediate scrutiny the appropriate standard under our precedents.…”

— Justice Clarence Thomas, opinion of the court

“A law like H. B. 1181 might well pass the strict-scrutiny test, hard as it usually is to do so. As just noted, everyone agrees that shielding children from exposure to the sexually explicit speech H. B. 1181 targets is a compelling state interest. And Texas might be right in arguing that it has no less restrictive way to achieve that goal: It is difficult, as everyone also agrees, to limit minors’ access to things appearing on the internet. If H. B. 1181 is the best Texas can do — meaning, the means of achieving the State’s objective while restricting adults’ speech rights the least—then the statute should pass First Amendment review.

“But what if Texas could do better — what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech H. B. 1181 covers? That is the ultimate question on which the Court and I disagree. The majority says that Texas may enforce its statute regardless, because only intermediate scrutiny applies and that test does not ask whether a State has adopted the least speech-restrictive means available. I disagree, based on conventional First Amendment rules and the way we have consistently applied them in this very context. The State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary.”

— Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, dissenting