Supreme Court Decides Free Speech Coalition, Inc. v. Paxton

On June 27, 2025, the Supreme Court of the United States issued a decision in Free Speech Coalition, Inc. v. Paxton, No. 23-1122, holding that, under the First Amendment, intermediate scrutiny applies to a state law requiring online publishers of sexually explicit content to verify the age of people seeking to access the website, and that the law in question survives intermediate scrutiny. 

In an effort to curtail the ability of minors to access sexually explicit content on the internet, the State of Texas enacted H.B. 1181, a law requiring publishers of such content to verify the age of their users through the “use [of] reasonable age verification methods.” Petitioners, a trade association, challenged H.B. 1181 as unconstitutional under the free speech protections of the First Amendment. The district court granted Petitioners a preliminary injunction, on the basis that H.B. 1181 was unlikely to satisfy strict scrutiny review. The Fifth Circuit reversed, holding that the law was not subject to any heightened scrutiny and that an injunction was therefore unwarranted.

The Supreme Court affirmed the denial of the injunction on alternate grounds. The Court observed that while strict scrutiny applies to laws burdening protected speech, intermediate scrutiny applies to laws that “only incidentally burden protected speech. It is well established that a state may restrict minors’ ability to access sexually explicit content, but not adults. Therefore, a law imposing an age verification requirement that seeks to exclude minors from accessing such content imposes only an incidental burden on adult access and is subject only to intermediate scrutiny. The Court explained that “adults have no First Amendment right to avoid age verification.”

Applying intermediate scrutiny, the Court held that H.B. 1181 was constitutional. The Court held that the law advanced the “important governmental interest” of shielding minors from sexual content and that the law was adequately tailored to that requirement, reasoning that States had long used age-verification requirements to safeguard children from sexually explicit materials while simultaneously vindicating adults’ interests in being able to access those materials.

Justice Thomas delivered the opinion of the Court, which was joined by Chief Justice Roberts, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. Justice Kagan filed a dissenting opinion that was joined by Justice Sotomayor and Justice Jackson.