On June 27th, the U.S. Supreme Court decided on behalf of child protection in Free Speech Coalition v. Paxton, upholding Texas’s age-verification law for online pornography. In a 6-3 ruling, the Court found that commercial websites containing a certain percentage of content obscene to minors could be required to verify the age of visitors, despite the incidental burdens to adult site visitors.
Background
In 2023 Texas passed H.B. 1181, a law requiring websites to verify users’ ages if over one-third of their content is deemed sexually harmful to minors. A federal judge initially blocked the law before it could go into effect, citing First Amendment concerns. The 5th Circuit later allowed the age-verification provision to proceed while the case was appealed.
Challengers, led by the Free Speech Coalition (the trade association of the pornography industry in the US) asked the U.S. Supreme Court to pause the 5th Circuit’s decision, which it declined to do. However, in July 2024, the Court agreed to review the case, which now centered on what level of scrutiny should be used to evaluate the constitutionality of H.B. 1181.
Decision
Writing for the majority, Chief Justice Thomas concluded that the law “triggers, and survives, review under intermediate scrutiny because it only incidentally burdens the protected speech of adults.” He explained that “[t]he 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.”
The court rejected the notion that adults have a first amendment right to avoid age verification, and Thomas pointed out that age verification is common in other areas where laws carry age restrictions such as obtaining alcohol or purchasing sexual material in person. Because H.B. 1181 does not restrict adults from accessing material obscene to minors, it simply requires proof of age to access the content, it does not directly regulate an adult’s protected speech. He also noted that the Texas bill is not unique, and that at least 21 other states “have imposed materially similar age-verification requirements to access sexual material that is harmful to minors online.”
Implications for ma
Paxton clears the way for the Massachusetts legislature to do the right thing and pass a similar age-verification law for online pornography sites. Studies clearly show the significant harm that early exposure to pornography does to children, including causing body image issues, sexual disfunction, and making girls more likely to become victims of sexual abuse. It remains to be seen whether our elected representatives will take these realities seriously.
Importantly, Paxton also reaffirmed the constitutional principle that certain things which might not be obscene for adults can still be obscene for minors. This common-sense holding may prove useful as MFI and other groups nationwide continue to advocate for the removal of sexually explicit materials from our children’s schools and libraries.
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