SCOTUS upholds Texas’ H.B. 1181 law mandating age verification for users visiting pornography websites

Supreme Court of the United States (SCOTUS): The Full Bench of the Court comprising of John Roberts, CJ., Clarance Thomas*, Samuel Alito, Sonia Sotomayor, Elena Kagan**, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson, JJ., were called upon to consider a challenge to the constitutional validity of a law passed by Texas titled H.B. 1181, which mandated age verification of users seeking to visit pornography websites. The Court with a ratio of 6:3, upheld the validity of H.B. 1181, stating that the law triggers, and survives, review under intermediate scrutiny because it only incidentally burdens the protected speech of adults.

Background:

Texas prohibits distributing sexually explicit content to children. In 2023, Texas enacted H. B. 1181, requiring certain commercial websites publishing sexually explicit content that is obscene to minors to verify that visitors are 18 or older. Petitioners, who represented the pornography industry, sued the Texas’ Attorney General to enjoin enforcement of H. B. 1181 as facially unconstitutional under the First Amendment’s Free Speech Clause. They alleged that adults have a right to access the covered speech, and that the statute impermissibly hinders them.

The Fifth Circuit Court held that an injunction was not warranted because petitioners were unlikely to succeed on their First Amendment claim. The Circuit Court considered H. B. 1181 as a “regulation of the distribution to minors of materials obscene for minors” and therefore determined that the law is not subject to any heightened scrutiny under the First Amendment.

Court’s Assessment:

The majority pointed out that to determine whether a law that regulates speech violates the First Amendment or not, the Court must consider both the nature of the burden imposed by the law and the nature of the speech at issue.

• Laws that target protected speech “based on its communicative content” are presumptively unconstitutional and may be justified only if “they satisfy strict scrutiny”.
• Laws that only incidentally burden protected speech are subject to intermediate scrutiny.

• Laws that restrict only unprotected speech, such as obscenity, receive rational-basis review.

The Court further observed that historically and traditionally sexual content that is obscene to minors but not to adults is protected in part and unprotected in part. States may prevent minors from accessing such content but may not prevent adults from doing the same.

H. B. 1181 has only an incidental effect on protected speech and is therefore subject to intermediate scrutiny. The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective.

The power to verify age is part of the power to prevent children from accessing speech that is obscene to them. Where the Constitution reserves a power to the States, that power includes “the ordinary and appropriate means” of exercising it. Requiring proof of age is an ordinary and appropriate means of enforcing an age-based limit on obscenity to minors. Age verification is common when laws draw age-based lines, e.g., obtaining alcohol, a firearm, or a driver’s license. Obscenity is no exception.

Since H. B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate adults’ protected speech. Adults have the right to access speech obscene only to minors, and submitting to age verification burdens the exercise of that right. However, adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment.

The Court pointed out that H. B. 1181 survives intermediate scrutiny because 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. H. B. 1181 furthers Texas’s important interest in shielding children from sexual content and is adequately tailored to that interest. States have long used age-verification requirements to reconcile their interest in protecting children from sexual material with adults’ right to avail themselves of such material. H. B. 1181 simply adapts this traditional approach to the digital age. The specific verification methods that H. B. 1181 permits government-issued identification and transactional data. Both are established methods of verifying age already in use by many pornographic websites and other industries with age-restricted services.

Dissenting opinion:

Elena Kagan, J., gave a dissenting opinion in which Justices Sotomayor and Jackson joined. She stated that under ordinary First Amendment doctrine, the Court should subject H. B. 1181 to strict scrutiny; because H. B. 1181 covers speech constitutionally protected for adults, impedes adults’ ability to view that speech and imposes that burden based on the speech’s content.

H. B. 1181 covers a substantial amount of speech protected by the First Amendment, and H. B. 1181 impedes the exercise of that right. To enter a covered website, with all the protected speech, an individual must verify his age by using either a “government-issued identification” like a driver’s license or “transactional data” associated with things like a job or mortgage. For the would-be consumer of sexually explicit materials, that requirement is a deterrent: “It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to . . . who knows? The operator might sell the information; the operator might be hacked or subpoenaed”.

The dissenting Judges stated that if a law burdens protected speech based on what that speech says or depicts—as H. B. 1181 does—the law must clear the strict-scrutiny bar.

“A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience”. However, the First Amendment protects those sexually explicit materials, for every adult. So, a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children.

[Free Speech Coalition v. Paxton, No. 23—1122, decided on 27-6-2025]

*Majority opinion by Justice Clarence Thomas

**Dissenting opinion by Justice Elena Kagan