Ƶ Comment on Supreme Court Decision in Free Speech Coalition v. Paxton

Affiliate: Ƶ of Texas
June 27, 2025 12:27 pm

WASHINGTON – The Supreme Court issued a blow to freedom of speech and privacy today by upholding Texas legislation that requires invasive age verification to access online content. Today’s ruling conflicts with decades of Supreme Court precedent protecting the free speech rights of adults to access sexual content online. But it is also a limited opinion that does not permit age verification for non-sexual content online.

“The Supreme Court has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials,” said Cecillia Wang, national legal director of the Ƶ. “The Texas statute at issue shows why those precedents applying strict scrutiny were needed. The legislature claims to be protecting children from sexually explicit materials, but the law will do little to block their access, and instead deters adults from viewing vast amounts of First Amendment-protected content.”

Texas’s H.B. 1181 mandates that any website where one-third or more of its content is deemed sexual in a way that is “harmful to minors” must require visitors to prove they are adults before accessing the site. The act defines “sexual material harmful to minors” as material that is obscene from the perspective of an average person considering the material’s effect on minors.

“Today's decision does not mean that age verification can be lawfully imposed across the internet,” said Vera Eidelman, senior staff attorney with the Ƶ Speech, Privacy and Technology Project. “With this decision, the court has carved out an unprincipled pornography exception to the First Amendment. The Constitution should protect adults’ rights to access information about sex online, even if the government thinks it is too inappropriate for children to see."

The Supreme Court reversed the Fifth Circuit’s ruling that mere rational basis scrutiny applies, instead imposing intermediate scrutiny, but it affirmed the Fifth Circuit Court’s ultimate conclusion that the law survives – and refused to apply strict scrutiny, as challenges to content-based laws typically do. However, the Texas law burdens adults’ ability to access sexual materials, requiring individuals to disclose personal information vulnerable to surveillance and data breaches just to access online content. The law also ultimately fails to achieve its intended purpose. Because the law only applies if one-third of a site’s content is explicit, the online sites where minors are most likely to be exposed to sexual content, like forums or social media platforms, are not affected.

“As it has been throughout history, pornography is once again the canary in the coal mine of free expression,” said Alison Boden, executive director of the Free Speech Coalition. “The government should not have the right to demand that we sacrifice our privacy and security to use the internet. This law has failed to keep minors away from sexual content yet continues to have a massive chilling effect on adults. The outcome is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”

The Supreme Court repeatedly heard cases on this issue in the past, many of which were brought by the Ƶ, and had consistently held that requiring users to verify their age to access protected content is unconstitutional where there are less restrictive alternatives available, like filtering software.

The Free Speech Coalition is represented by Quinn Emanuel, the Ƶ, and the Ƶ of Texas.

This case is a part of the Ƶ’s Joan and Irwin Jacobs Supreme Court Docket.

The decision can be read .


Learn More Ƶ the Issues in This Press Release