The U.S. Supreme Court on June 27 upheld a Texas law requiring age verification to access pornographic websites.

The majority opinion in the 6–3 decision in Free Speech Coalition Inc. v. Paxton was written by Justice Clarence Thomas.

The petitioner, the Free Speech Coalition, describes itself as the “nonprofit non-partisan trade association for the adult industry.”

The respondent, Ken Paxton, is the attorney general of Texas.

The decision affirms a federal appeals court decision that upheld the law known as H.B. 1181.

Although the law burdens, or interferes with, the rights of adult visitors to these websites, H.B. 1181 is consistent with the free speech clause of the First Amendment, the Supreme Court majority held.

“The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content. H. B. 1181 is a constitutionally permissible exercise of that authority,”  Thomas wrote.

If a commercial entity intentionally violates the law, the attorney general of Texas may sue to block the violation and impose separate penalties. A penalty of $10,000 per day may be levied if the website is noncompliant, in addition to a $250,000 penalty if any minors accessed sexual material covered by the law as a result of the website’s violation, according to the ruling.

“H.B. 1181 is not the only law of its kind. At least 21 other States have imposed materially similar age-verification requirements to access sexual material that is harmful to minors online,” Thomas wrote.

In August 2023, a federal district court temporarily blocked the age verification requirement, as well as a requirement that the affected websites post health hazard warnings about pornography use.

The Fifth Circuit reversed in March 2024, upholding the law’s hazard warning mandate and overturning the lower court’s injunction blocking the verification provision.

The coalition argued that the Fifth Circuit erred when it held that the law needed only a “rational basis” instead of “heightened scrutiny” to pass constitutional muster. The two phrases refer to standards that courts use when reviewing laws that impose limits on speech.

In its petition, the coalition said the Supreme Court has held that if a law enacted to protect minors from sexually explicit content “also burdens adults’ access to constitutionally protected speech, the law can ‘withstand constitutional scrutiny’ only if it is ‘narrowly drawn … to serve those interests without unnecessarily interfering with First Amendment freedoms.”

The online age verification procedure required by the state law makes users identify themselves by presenting government-issued identification, and this creates a “substantial chilling effect” by exposing adults to the “risk of inadvertent disclosures, leaks, or hacks,” the petition states.

Users may be “more willing to pay to keep that information private,” and that information may be “targeted by identity thieves and extortionists,” according to the petition.

In a brief, Paxton said the coalition does “not dispute that if they were brick-and-mortar bookstores or sidewalk magazine stands, Ginsberg v. New York would permit Texas to require them to check the age of their customers before selling them pornography.”

In Ginsberg, the Supreme Court ruled in 1968 that even if the material is not deemed obscene, its marketing may still be regulated because it may be harmful to children.

Paxton said the coalition was essentially arguing that because its members’ businesses are operated online, “the First Amendment allows them to provide access to nearly inexhaustible amounts of obscenity to any child with a smartphone.”

Thomas wrote in the majority opinion that the Ginsberg ruling held that minors are more susceptible to harm from sexually explicit content than adults and have difficulty understanding “the role it might play within a larger expressive work.” As a result, minors enjoy “a more restricted right … to judge and determine for themselves what sex material they may read or see.”

The Texas law “regulates only speech that is obscene to minors,” that adults otherwise have a right to access, he wrote.

States have long had the authority to forbid obscene material for the public at large, and to stop children from accessing material that is deemed obscene to children. Obscenity itself has long been regulated, going back to 18th-century England. When the Civil War ended, most states had passed laws prohibiting obscenity, and Congress had forbidden sending obscene materials in the mail. Since the late 19th century, the Supreme Court has accepted the government’s power to ban obscenity, Thomas wrote.

Submitting to age verification does not burden the exercise of adults’ access right, and adults do not possess a First Amendment right to avoid such verification, he said.

“Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment,” he wrote.

Under precedents, intermediate scrutiny is the appropriate standard for evaluating the case, Thomas wrote.

Intermediate scrutiny allows a statute to survive when it “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests,” he wrote, quoting from a prior precedent.

H.B. 1181 is advancing an important government interest, which is the state’s interest in protecting children from sexual content, he said. The law goes no further than what is needed to advance that interest, he wrote.

Justices Elena Kagan wrote a dissenting opinion, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

It is widely accepted that exposing children to sexually explicit material “can cause great harm” and that states have a “compelling interest” in keeping that material away from them, Kagan wrote. The problem is that adults and children “do not live in hermetically sealed boxes,” and keeping material that is “obscene for children” away from children without burdening adults’ access right presents potential constitutional problems, Kagan wrote.

In the past, when considering related cases, “we have given the same answer, consistent with general free speech principles, each and every time,” applying strict scrutiny, she said, which she described as “a highly rigorous but not fatal form of constitutional review.”

“Is the law the least restrictive means of achieving a compelling state interest? There is no reason to change course,” she wrote, adding that strict scrutiny is the appropriate standard in this case.

This article by Matthew Vadum appeared June 27, 2025, in The Epoch Times.