Free Speech Coalition v. Paxton
Whether strict scrutiny or a lesser standard of constitutional review applies to a Texas law requiring age verification before users can access sexually explicit websites.
Background & Facts
Texas enacted House Bill 1181, requiring any website where more than one-third of content qualifies as 'sexually harmful to minors' to implement age-verification systems before allowing any user to access the site. The law also mandated health warnings on such websites. Websites that fail to comply face enforcement by the state Attorney General. The Free Speech Coalition, an adult-content industry group whose members include major pornographic websites such as Pornhub, challenged the law as an unconstitutional restriction on free speech protected for adults.
A federal district court issued a preliminary injunction blocking the law, applying strict scrutiny—the most demanding constitutional test—and finding that age verification was not the least restrictive means of protecting minors because content-filtering software was a viable alternative. The Fifth Circuit Court of Appeals reversed, applying rational basis—the most lenient standard—relying primarily on Ginsberg v. New York, a 1968 case upholding a law restricting the sale of obscene magazines to minors. The Fifth Circuit found the law satisfied that lenient standard.
The Supreme Court agreed to hear the case. The core dispute is whether the Fifth Circuit was right to use rational basis, or whether the Court's more recent precedents—particularly Ashcroft v. ACLU (2004), Reno v. ACLU (1997), and Sable Communications v. FCC (1989)—require strict scrutiny because the law burdens constitutionally protected speech for adults, even if the goal is to protect children. The United States appeared as amicus curiae supporting vacatur, agreeing that strict scrutiny applies but declining to say whether this specific law satisfies it.
Why This Case Matters
This case could set the constitutional framework governing more than 20 state age-verification laws enacted since 2022, as well as any future federal legislation on the same topic. A ruling that strict scrutiny applies would require states to demonstrate that age verification is the narrowest possible way to keep minors away from harmful online content, potentially invalidating laws that are not precisely tailored. A ruling that rational basis or intermediate scrutiny applies would give states far wider latitude to restrict online pornography.
Beyond the immediate issue, the case raises fundamental questions about how First Amendment precedents developed in the early internet era apply when smartphones give every child pocket-sized access to explicit material. The Court must decide whether rapid technological change justifies revisiting established free-speech standards, or whether the core legal principles remain constant even as the facts on the ground change dramatically—a question with implications across all areas of First Amendment law touching on new technology.
The Arguments
The Fifth Circuit's application of rational basis contradicts at least five Supreme Court precedents requiring strict scrutiny whenever the government imposes a content-based burden on speech that adults have a constitutional right to access. Under strict scrutiny, Texas's law fails because content-filtering software is a less restrictive and more effective alternative, and the law's age-verification methods are unduly burdensome, privacy-invasive, and wildly under-inclusive.
- Strict scrutiny is required under Sable, Reno, Playboy, and Ashcroft—all cases where the Court applied it to laws burdening adults' access to sexually explicit content.
- Content-filtering technology has improved significantly since Ashcroft and remains a viable less restrictive alternative; Texas never seriously considered it before enacting age verification.
- Texas's permitted age-verification methods require disclosure of sensitive personal or transactional data to a government avowedly hostile to these websites and their users, creating serious and unchilled privacy risks.
- The law is wildly under-inclusive—exempting foreign websites, search engines, VPNs, and social media—meaning tech-savvy minors can easily bypass it, undermining the compelling-interest justification.
Key Exchanges with Justices
Justice Barrett
“Why is age verification uniquely burdensome online when brick-and-mortar stores have long required ID checks without constitutional problem?”
Petitioner's response—that online verification creates permanent, hackable records tied to sensitive content, unlike flashing an ID in person—exposed the core factual distinction underlying the strict-scrutiny argument.
Justice Sotomayor
“Isn't the question presented only about the level of scrutiny, not whether the law is constitutional? And don't five of this Court's precedents directly answer that question in favor of strict scrutiny?”
Her questioning clarified that the Fifth Circuit's ruling would require overturning five precedents to affirm, significantly raising the stakes for Texas's position.
Justice Jackson
“If we determine the court of appeals applied the wrong standard, doesn't the district court's preliminary injunction simply spring back into effect without us needing to assess likelihood of success on the merits?”
Her question suggested the Court could issue a narrow ruling correcting the Fifth Circuit's choice of standard and remanding, avoiding difficult factual questions about technology and tailoring.
The Fifth Circuit was wrong to apply rational basis; strict scrutiny governs because Texas's law imposes a content-based burden on speech protected for adults. However, Ashcroft II's preliminary application of strict scrutiny 20 years ago does not prevent courts today from upholding age-verification requirements now that verification technology has become far less burdensome and experience has shown that content filtering is not working.
- The government previously conceded strict scrutiny in Ashcroft II after being rebuffed arguing for intermediate scrutiny in Sable, Reno, and Playboy.
- Three ambiguities in Texas's law should be resolved before strict-scrutiny analysis: the one-third content trigger, which age-verification methods are permitted, and which minors' ages define 'obscene as to minors.'
- Strict scrutiny can be satisfied here because the government has a uniquely compelling interest—one of the rare cases where restricting content-based speech serves a concededly compelling goal.
- The Court should remand to the Fifth Circuit rather than apply strict scrutiny itself, consistent with its role as a court of review rather than first view.
Key Exchanges with Justices
Chief Justice Roberts
“Given the dramatic technological change since Sable and Ashcroft—smartphones, ubiquitous access—shouldn't the Court at least consider revisiting the standard of scrutiny?”
Fletcher's response—that technological changes bear on how scrutiny is applied, not what the standard is—articulated the government's key strategy for preserving precedent while giving states more room to regulate.
Justice Kagan
“On a blank slate, how do you weigh two spill-over dangers: relaxing strict scrutiny in this area bleeds into other areas, versus treating a clearly content-based law as not requiring strict scrutiny opens the door to more unreviewed content restrictions?”
Fletcher's answer—that the second danger, undermining content-based doctrine broadly, is worse—explained why the government supports strict scrutiny even given its practical difficulties for states.
Justice Kavanaugh
“How should the Court handle Ashcroft II's application of strict scrutiny—should we say it is overtaken by events and no longer valid as applied?”
Fletcher suggested Ashcroft II's application of strict scrutiny was self-consciously tentative and not a binding holding entitled to strong stare decisis, giving the Court flexibility without a formal overruling.
This case is the digital equivalent of Ginsberg v. New York, and rational basis review applies to a law that merely requires age verification before minors can access content everyone agrees is harmful to them. Even if strict scrutiny applies, Texas's law satisfies it because content filtering has demonstrably failed, age-verification technology is now simple, safe, and can be done without identifying information, and Texas's law is less burdensome than the federal law reviewed in Ashcroft.
- Ginsberg upheld a law requiring 'a reasonable bona fide attempt to ascertain' customers' ages under rational basis; Texas's biometric age-verification option is less burdensome than that standard.
- Age verification today can be done biometrically—a face or hand scan with no identifying information—making Ashcroft-era privacy concerns greatly diminished.
- Content filtering has been tried for decades and the problem of minors accessing online pornography has only worsened, undercutting petitioners' less-restrictive-alternative argument.
- Applying strict scrutiny to age-verification requirements would destabilize longstanding and unquestioned regulations of strip clubs, adult bookstores, and all sexually oriented businesses.
Key Exchanges with Justices
Justice Jackson
“If a state required adults to submit a passport, a birth certificate, and a biological parent's affidavit to access this content, would that still be rational basis—and if not, isn't evaluating that kind of burden the work of strict scrutiny?”
Texas's concession that some burdens would cross a constitutional line—while insisting rational basis applies—exposed an internal tension that several Justices found irreconcilable with traditional rational basis doctrine.
Justice Sotomayor
“Can you point to a single line in Ginsberg that addresses the burden of age verification on adults, rather than simply the rights of minors not to access this material?”
Texas's inability to cite language in Ginsberg directly addressing adult burdens suggested the case does not as clearly support rational basis for age-verification laws as Texas argued.
Justice Kagan
“How does Texas's law actually fare on each of the three concerns the government identified: the one-third trigger, the permitted verification methods, and the definition of 'obscene as to minors'?”
Texas's answers—asserting biometrics are permitted and courts would read the law narrowly—were simultaneously defenses of the law and concessions that these questions remain unresolved in any Texas court, supporting the case for remand.
Precedent Cases Cited
Ginsberg v. New York
390 U.S. 629
Texas and the Fifth Circuit relied on Ginsberg as the controlling precedent establishing that rational basis review applies to laws restricting minors' access to sexually explicit material; petitioners argued it addressed only the rights of minors, not burdens imposed on adults seeking access.
Sable Communications of California, Inc. v. FCC
492 U.S. 115
Petitioners cited Sable as the foundational precedent establishing that strict scrutiny applies to laws burdening adults' access to sexually explicit content, even when the same content may be regulated for children under rational basis.
Reno v. American Civil Liberties Union
521 U.S. 844
Petitioners cited Reno to demonstrate the Court's consistent application of strict scrutiny to content-based internet restrictions, and for the principle that suppressing speech adults have a right to receive in order to protect minors triggers the highest scrutiny.
Ashcroft v. American Civil Liberties Union
542 U.S. 656
The central precedent in the case: the Court applied strict scrutiny to COPA, a federal online child-protection age-verification law nearly identical to Texas's, and upheld a preliminary injunction because content filtering remained a viable less restrictive alternative at that time.
United States v. Playboy Entertainment Group, Inc.
529 U.S. 803
Petitioners cited Playboy for the principle that laws that merely 'channel' rather than ban protected speech for adults are still subject to strict scrutiny, supporting the argument that Texas's age-verification requirement—which burdens rather than prohibits access—triggers the highest standard.
FCC v. Pacifica Foundation
438 U.S. 726
Texas argued that Pacifica's reduced scrutiny for broadcast media could be analogized to internet regulation; petitioners and the government distinguished it as limited to over-the-air broadcasting's unique pervasiveness and spectrum scarcity, which have no internet counterpart.
City of Renton v. Playtime Theatres, Inc.
475 U.S. 41
Texas invoked Renton's secondary-effects doctrine to argue for intermediate rather than strict scrutiny; petitioners and the government argued Renton is strictly limited to zoning laws targeting non-speech effects like crime and property values, not laws directly targeting speech content.
Moody v. NetChoice, LLC
Petitioners cited Moody for the standard governing facial First Amendment challenges, arguing they satisfied the requirement to demonstrate unconstitutionality in a substantial number of the law's applications.