Free Speech Coalition v. Paxton: A New Era of Digital Paternalism
Casenote
By Isabella Blackburn[*]
Introduction
Ninety-six percent of teenagers, ages thirteen to seventeen, use the internet every day.[1] Ninety-five percent of teenagers have access to a smartphone,[2] and ninety-seven percent of children ages three to eighteen have home internet access.[3] Currently, minors in the United States have access to endless content in their homes and at their fingertips. This reality raises serious concerns. Studies show that adolescent pornography use has continuously increased, with the age of first exposure to sexually explicit materials getting younger.[4] Another study estimates that 68.4% of adolescents reported exposure to online pornography.[5]
Between 2004 and 2025, the Supreme Court of the United States did not rule on a single case involving online speech restrictions, leaving legislative efforts to regulate minors’ access to sexually explicit content in the digital age largely unexamined. Therefore, prolonged judicial silence contributed to the enactment of measures such as Texas’s H.B. 1181, which mandates that commercial websites containing at least one-third sexually explicit material implement age verification protocols for all visitors.[6] Texas’s law made its way to the Supreme Court, where the Court was left to decide the appropriate standard of review to apply when ruling whether the law was constitutional.[7] The Supreme Court held intermediate scrutiny was the proper standard and that H.B. 1181 survived under this standard.[8] The Supreme Court’s decision undermines fundamental First Amendment doctrine and precedent, signaling a growing trend of judicial permissiveness towards state paternalism.
Casenote examines the Supreme Court case Free Speech Coalition, Inc. v. Paxton.[9] Section I outlines the factual background and procedural history. Section II situates Free Speech Coalition within relevant First Amendment jurisprudence, including cases on obscenity, minors, and speech restrictions. Section III summarizes the Court’s majority and dissenting opinions. Section IV critiques the decision, arguing that the Court’s application of intermediate scrutiny departs from precedent and reflects a growing trend toward digital paternalism. Finally, this Casenote concludes by warning of the broader consequences the ruling may have for access to lawful online expression.
I. From Legislation to Litigation: H.B. 1181 and the Age Verification Mandate
In 2023, Texas enacted H.B. 1181, a law requiring commercial websites that publish sexually explicit content to verify that users are at least eighteen years of age before granting access.[10] Legislators primarily drove the legislation, most notably Representative Matt Shaheen,[11] and it was supported by child welfare and socially conservative advocacy groups alongside state officials, including the Attorney General.[12] H.B. 1181 passed with broad bipartisan support.[13]
Representative Shaheen, the bill’s author, cited research suggesting that minors are routinely exposed to online pornography due to a lack of adequate controls, resulting in potential harms such as desensitization and developmental interference.[14] Shaheen emphasized that pornography is “biologically addictive, desensitizing brain reward circuits, increasing conditioned responses, and weakening brain function.”[15] Overall, the purpose of H.B. 118, as articulated in the law itself, is to prevent minors from accessing explicit content.[16]
H.B. 1181 regulates commercial entities that publish or distribute materials on internet websites, including social media platforms, where more than 33% of the content is sexual material harmful to minors.[17] H.B. 1181 defines “sexual material harmful to minors” using a modified version of the Miller test[18] tailored to minors for obscenity.[19] Under H.B. 1181, covered entities are required to implement “a commercial age verification system” that confirms the age of website visitors either through “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” [20] Failure to comply could result in the Texas Attorney General suing to “enjoin the violation, recover a civil penalty, and obtain other relief the court considers appropriate.”[21] The Attorney General may also recover a civil penalty of up to $10,000 per day that the website is non-compliant, and an additional penalty of up to $250,000 if any minors access the material due to the violation.[22] The basis of the amount of a civil penalty depends on six factors, which include the seriousness of the violation, prior history of violations, deterrence, economic effect on the entity, knowledge of the violation by the entity, and further instances where justice is required.[23]
In August 2023, the Free Speech Coalition, Inc., a national trade association representing adult content producers, distributors, and websites, along with several companies operating pornographic websites and a pornography performer, filed suit in the United States District Court for the Western District of Texas, Austin Division, against Texas Attorney General Ken Paxton.[24] The petitioners alleged that H.B. 1181 violated their First Amendment rights by restricting access to protected speech, namely, their right to view pornographic material.[25] They argued that H.B. 1181 was subject to strict scrutiny and that the law failed this standard, given that its age verification requirement was overbroad and used the least effective yet most restrictive means to accomplish its purpose of protecting minors.[26] In response, the defendant principally conceded that strict scrutiny applies but argued that it should be subject to a lower standard because it “regulates only commercial entities, publication and distribution of material harmful to minors.”[27] As a result, the defendant further suggested intermediate scrutiny was the appropriate standard because H.B. 1181 is akin to a time, place, and manner restriction.[28]
In turn, the district court issued a pre-enforcement preliminary injunction after finding that the plaintiffs were likely to succeed on the merits.[29] The plaintiff’s likelihood of success stemmed from the defendant’s argument that H.B. 1181 is only constitutional if the Supreme Court changes its precedent on obscenity, along with the status quo that content filtering is a narrower alternative than age verification.[30] The district court concluded that the law was subject to strict scrutiny, not narrowly tailored, and the least restrictive means to achieve a state interest.[31]
On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the injunction.[32] The court first held that rational basis was the appropriate standard of review, reasoning that when states regulate a specific kind of medium, it does not automatically trigger strict scrutiny.[33] It then concluded that H.B. 1181 satisfied rational basis review because the age verification requirement was reasonably related to the government’s interest in preventing minors from accessing pornography and only incidentally affected adults’ privacy.[34]
Further, “[p]etitioners sought a stay of the Fifth Circuit’s judgment, which the Supreme Court of the United States (“Court”) denied.”[35] The Court granted certiorari “to determine whether H.B. 1181’s age verification requirement is likely constitutional on its face.”[36] The Court held that H.B. 1181 triggers intermediate scrutiny and concluded that it is a constitutionally permissible exercise of Texas’s authority to prevent minors from accessing sexually explicit content.[37] Ultimately, the Court affirmed the Fifth Circuit’s judgment that H.B. 1181 is constitutional.[38]
II. The Precedential Backdrop
Texas is not alone in adopting age verification laws. In fact, in 2023, Louisiana became the first state to enact legislation requiring age verification for online access to sexually explicit material, launching a new movement of state-level efforts to regulate digital pornography.[39] Louisiana’s law requires websites that have “material harmful to minors” to “perform reasonable age verification methods to verify the age of individuals attempting to access the material.”[40] Following Louisiana’s lead, over twenty states, including Texas, have introduced or passed similar laws,[41] many of which were put on hold or were awaiting judicial guidance pending the Court’s decision in Free Speech Coalition.[42]
To understand the constitutionality of these age verification laws, it is necessary to contextualize the dispute within the broader framework of the First Amendment legal doctrine. Over the past century, the Court has developed a dynamic body of case law that governs the regulation of speech, specifically as it pertains to sexually explicit content and access to minors. However, the intersection of emerging technologies and the regulation of sexually explicit content for minors has received little attention in constitutional jurisprudence. This section outlines the legal precedent in four key areas: (A) the obscenity doctrine; (B) the First Amendment’s application to minors; (C) levels of scrutiny used in evaluating speech-related restrictions; and (D) the First Amendment’s application to the internet as it relates to minors.
A. Drawing the Line: Obscenity and the Limits of Protection
The First Amendment does not protect obscenity.[43] The Court has justified this exclusion on the grounds that obscene material is “utterly without redeeming social value.”[44] Therefore, it does not contribute to the political or social discourse protected by the First Amendment.[45] In Miller v. California, the Court created the three-pronged Miller test to determine what constitutes obscenity.[46] The test requires evaluating a work in its entirety on whether: (1) it “appeals to the prurient interest;” (2) “depicts or describes, in a patently offensive way, sexual conduct;” and (3) “lacks serious literary, artistic, political, or scientific value.”[47] Applying this framework, the Court remanded Miller for further proceedings, but it directly upheld obscenity convictions in Hamling v. United States, involving the distribution of pornographic literature through the mail, and Smith v. United States, concerning the sale of obscene materials by a bookstore clerk.[48]
B. The State’s Interest in Shielding Children
States have broader authority to regulate content accessible to minors than to regulate content accessible to adults. In Ginsberg v. New York., the Court upheld a statute that prohibited the sale of sexually explicit materials to minors, even if such material would be protected for adults.[49] Furthermore, Ginsberg confirmed that a state has a constitutional power to regulate the well-being of its youth, and as a result, minors have more restricted rights than adults.[50] However, the state’s power to regulate content potentially accessed by minors is not without limits. In Butler v. Michigan, the court struck down a law that banned selling books to adults that were deemed harmful to children, such as sexually explicit novels or material depicting graphic violence.[51] The Court held that the government cannot “reduce the adult population . . . to reading only what is fit for children.”[52] At its core, Butler validated the principle that adults cannot be denied access to lawful speech on the basis that it is inappropriate for minors.[53]
C. Tiers of Scrutiny: A Doctrinal Spectrum
When considering the appropriate judicial standard of review for a First Amendment challenge, it is important to determine the type of restriction that is being applied.[54] Content-based restrictions target speech based on its communicative content.[55] The most stringent standard of review is applied to content-based restrictions.[56] They are presumptively unconstitutional and may be upheld only if they satisfy strict scrutiny.[57] Under this standard, the restriction is only constitutional if it “(1) serve[s] a compelling governmental interest, (2) [is] narrowly tailored to achieve it, and (3)[is] the least restrictive means of advancing it.”[58] This principle has long been applied in the circumstances of adult content regulation, as seen in Sable Communications of California, Inc. v. FCC[59] and United States. v. Playboy Entertainment Group, Inc.,[60] both in which the Court struck down laws aimed at shielding minors from sexual content because they were not the least restrictive means.[61]
On the other hand, content-neutral regulations are reviewed under immediate scrutiny because they generally present a lower risk of eliminating particular ideas or viewpoints from public discourse.[62] Under this less rigorous standard, a law will be upheld “if 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.”[63] Fundamentally, the regulation is considered sufficiently tailored if (1) the government’s interest would be achieved less effectively without it, and (2) the regulation does not burden more speech than necessary to achieve that interest.[64] Yet, the regulation does not have to be the least restrictive means of accomplishing the state’s purpose,[65] nor is it required to resolve every facet of the issue in a single action.[66]
D. Speech in the Digital Age
Lastly, Free Speech Coalition must be viewed in consideration of the Court’s two landmark decisions on internet speech: Reno v. American Civil Liberties Union [67] and Ashcroft v. American Civil Liberties Union.[68] In Reno, the Court struck down the Communications Decency Act’s (CDA) broad restrictions on indecent online speech, holding that the CDA is entitled to the highest level of First Amendment protection.[69] The Court concluded that the CDA failed to meet the First Amendment’s required precision for content-based speech regulation, excessively burdening a substantial amount of protected adult speech in the process of restricting minors’ access to harmful material.[70] The Court determined that such a burden is unconstitutional when less restrictive and equally effective alternatives are available.[71] In Ashcroft, the Court invalidated the Child Online Protection Act (COPA), again emphasizing that even well-intentioned laws cannot unduly burden lawful adult speech online, particularly when less restrictive alternatives, such as user-based filtering software, are available.[72] Together, these cases establish that laws regulating online speech must be narrowly tailored to avoid overbroad restrictions on protected adult expression, and that the government must consider less restrictive means before imposing content-based regulations aimed at protecting minors.
III. The Supreme Court Speaks
In a 6-3 decision, the Court held that H.B. 1181, Texas’s age verification requirement for commercial websites distributing sexually explicit material, does not violate the First Amendment.[73] Applying intermediate scrutiny, the Court concluded that the Texas law permissibly regulates commercial speech to protect minors from harmful content.[74] This section first examines the majority’s reasoning and justification for applying intermediate scrutiny, then turns to the dissent’s critique, which argues that, because H.B. 1181 is a content-based restriction, it must be evaluated under strict scrutiny.
A. Majority Opinion: Balancing Speech and Safety
The Court first concluded that intermediate scrutiny was the appropriate standard of review.[75] Writing for the majority, Justice Thomas, in typical originalist fashion, began with a historical review of the First Amendment’s application to minors.[76] While the First Amendment prohibits laws that abridge the freedom of speech, including those that restrict expression based on its “message, its idea, its subject matter, or its content,” this protection is not absolute.[77] Rather, evaluating the constitutionality of speech regulations requires considering “both the nature of the burden imposed and the nature of the speech at issue.”[78]
The Court reaffirmed the traditional distinction between content-based and content-neutral laws.[79] Further, the Court noted that not all speech is protected by the First Amendment,[80] reaffirming that obscenity as defined by the Miller test falls outside the scope of protection.[81] To build on this, the Court pointed out that, traditionally, states were allowed to restrict minors’ access to sexually explicit material, even when that material is not obscene for adults.[82]
To support its conclusion, the Court rooted its analysis in the longstanding precedent that states have the authority to limit minors’ access to sexually explicit material.[83] The Court embraced and anchored its reasoning in Ginsberg, where the Court held that a law prohibiting minors from purchasing sexual material was constitutional.[84] In that case, the Court clarified that states can treat minors differently regarding access to sexual content, recognizing that placing limits can be necessary to protect children.[85] Additionally, the Court referenced Ginsberg to establish that sellers must verify a buyer’s age and are afforded a defense only when they have made a bona fide effort to ensure the individual is not a minor.[86] The Court used this as evidence that requiring people to verify their age, even if it creates some inconvenience for adults, has long been recognized as constitutional.[87] H.B. 1181, the Court reasoned, brings that same idea into the online world.[88]
Moreover, the Court relied on Turner Broadcasting System, Inc. v. FCC,[89] and United States v. O’Brien,[90] to illustrate that if the law does not target speech directly, but only creates a small burden while serving an important purpose, like protecting children, it should be reviewed under intermediate scrutiny.[91] Since H.B. 1181 does not ban or block adults from accessing the protected speech, but instead just asks for proof of age, the Court found that it fits within this tradition of acceptable regulation.[92]
In evaluating the appropriate level of scrutiny, the Court reasoned that applying strict scrutiny would risk invalidating all age verification laws, including long-accepted physical, “brick-and-mortar” contexts.[93] The majority emphasized that strict scrutiny lacks the flexibility to account for the nuanced distinction between longstanding physical age verification requirements and the narrower, online access-based regulation.[94] The Court also rejected the argument that precedent compelled applying strict scrutiny, noting prior cases such as Reno[95] and Ashcroft.[96] These cases involved far more sweeping laws that imposed total bans on content, blocking access for both adults and minors, unlike H.B. 1181, which functions merely as a procedural safeguard.[97] Notably, the majority stressed that those cases were decided over two decades ago when the internet and age verification tools were in early stages of development.[98] The Court reasoned that presently, technology has advanced making age verification more secure, less burdensome, and common across multiple platforms.[99] Thus, the concerns about privacy and anonymity, which were central to the holdings in Reno and Ashcroft were viewed as less compelling in today’s digital environment.[100]
Additionally, the Court concluded that rational basis review was insufficient because H.B. 1181 does implicate adults’ access to protected expression, a fundamental constitutional right.[101] The Court explained that rational basis is appropriate only when no such right is at stake.[102] Ultimately, the Court decided intermediate scrutiny is better suited to navigate such nuances and prevents lawmakers from disguising violations of fundamental rights as reasonable regulations.[103]
Applying intermediate scrutiny, the Court held that H.B. 1181 serves an important governmental interest—shielding minors from harmful material—and that the law was narrowly tailored to accomplish that objective.[104] H.B. 1181 does not criminalize or suppress sexually explicit content; rather, it imposes a procedural requirement for users to verify their age before accessing adult content.[105] Because age verification requirements have become widespread and commonly used, it is sufficiently tailored to Texas’s interest.[106] The Court claimed that the age verification requirement is similar to common and accepted age-based access restrictions, such as purchasing alcohol or tobacco, obtaining tattoos, or getting married.[107] Thus, the majority concluded that H.B. 1181 imposes only an incidental burden on adult access to lawful speech and passes constitutional muster and survives under intermediate scrutiny.[108]
In summation, the Court found that H.B. 1181 only requires adults to verify their age before accessing speech that is restricted for minors, even if it is legally protected for adults, characterizing this requirement as merely an incidental burden on adult expression.[109] Thus, it is only subject to intermediate scrutiny, which the court held it survives.[110] The Court reasoned that H.B. 1181 furthers the State’s interest in protecting children from sexually explicit content and is appropriately tailored because it allows visitors to verify their age through established methods.[111] As a result, the Court affirmed the judgment of the Court of Appeals for the Fifth Circuit.[112]
B. The Dissent: A Call for Jurisprudential Consistency
In dissent, Justice Kagan, joined by Justices Sotomayor and Jackson, rejected the majority’s reasoning and conclusion, arguing that a state could not target expression any more than is necessary to prevent it from reaching children.[113] Ultimately, the dissent rejected the majority’s decision to apply intermediate scrutiny to H.B. 118.[114] The Justices noted that both longstanding First Amendment principles and controlling precedent demand the application of strict scrutiny whenever the government imposes burdens on speech protected for adults.[115] At its core, the dissent maintained that strict scrutiny is the proper standard of review, and the majority’s opinion was a blatant disregard of case precedent.[116]
At the outset, the dissent argued that the Court should subject H.B. 1181 to strict scrutiny based on First Amendment principles.[117] Expanding on this, the dissent pointed out that the Texas law regulated “speech constitutionally protected for adults, imped[ed] adults’ ability to view that speech, and impose[d] that burden based on the speech’s content.”[118] Therefore, the dissent concluded that H.B. 1181 regulated speech that was protected by the First Amendment.[119] Next, the dissent pointed out that H.B. 1181 also imposed a burden on the exercise of that right, which First Amendment decisions would have defined as a “chilling effect,” referring to giving identification information to a website operator with unknowns to whom else had access.[120] Ultimately, the dissent came to the conclusion H.B. 1181 burdens expression.[121]
Accordingly, the dissent stressed that H.B., 1181 imposed such burdens on protected speech based on its content.[122] Thus, H.B. 1181 was a content-based law and was subject to strict scrutiny.[123] The dissent emphasized that when considering the correct standard of review for a law, the type of restriction dictates the correct standard of review, regardless if the purpose behind the regulation is compelling.[124] The dissent clarified that whether a law serves a compelling interest is not relevant to selecting the standard of review, but becomes pertinent only if strict scrutiny applies.[125] The dissent asserted that the majority used backwards reasoning, or outcome-driven logic, in its decision, and further claimed that the majority was unapologetic in its approach and actively defended its action.[126] To illustrate the majority’s outcome-driven logic, the dissent quoted the majority’s opinion, which stated that “legitimacy of age verification schemes for sexually explicit speech . . . is uncontroversial… [a]nd [a]pplying the more demanding strict-scrutiny standard would call those schemes into question.”[127]
Notably, the dissent clarified that strict scrutiny was not a “death sentence.”[128] Instead, the dissent phrased strict scrutiny as a way to ensure states are exercising necessary care when creating legislation that regulates or restricts First Amendment rights.[129] The dissent reasoned that applying strict scrutiny to H.B. 1181 left the Court with the task of evaluating whether an alternative action would have been more effective.[130] If so, then it would not have survived.[131] Yet, the dissent mentioned that in a medium such as the internet, regulation would likely burden adults in some capacity, but what strict scrutiny ultimately demands is the least restrictive means.[132] In this case, if age verification was the most effective and less burdensome mechanism of achieving the goal of shielding minors from sexually explicit content, then H.B. 1181 would have survived.[133] Therefore, the dissent argued, Texas need not have been afraid of strict scrutiny; instead, it was required when implementing a content-based burden on protected speech.[134]
Drawing on jurisprudence, the dissent articulated that in four instances in similar content-based burdens on sexually explicit speech in various medium, the Court has used and applied strict scrutiny.[135] The dissent wrote, “Four times, one result. Which is not surprising, because it is the result that basic First Amendment principles command.”[136] However, the dissent expressed concern over the majority’s disregard to case precedent and absent reasoning for straying away from foundational First Amendment legal doctrine.[137] Additionally, the dissent disputed the majority’s claim that precedent involving outright bans was inapplicable because H.B. 1181 was not a ban, noting instead that three of the four cases cited were likewise not bans.[138] Ultimately, the dissent relied on Playboy Entertainment Group to clarify that the use of a ban or a prohibition was irrelevant when determining the proper standard of review.[139]
In conclusion, the dissent maintained that H.B. 1181 imposed a content-based burden on protected speech and, therefore, could only be upheld if it survived strict scrutiny review.[140] In the dissent’s view, applying strict scrutiny to content-based restrictions is a foundational legal principle that the majority failed to observe.[141]
IV. Assessing the Court’s Approach
The Court’s decision in Free Speech Coalition marks a pivotal moment in First Amendment legal doctrine. By upholding Texas’s H.B. 1181, the Court not only misapplied the appropriate level of constitutional scrutiny but also signaled a growing willingness to tolerate paternalistic state regulations that burden protected speech under the guise of child protection. This section examines three core flaws in the Court’s reasoning: (A) its improper application of intermediate scrutiny to a content-based regulation, (B) its failure to recognize less restrictive alternatives that would satisfy strict scrutiny, and (C) its broad embrace of digital paternalism that threatens to erode the autonomy of adult internet users.
A. Content-Based But Treated Otherwise
The Court’s decision in Free Speech Coalition marks a departure from longstanding First Amendment precedent by applying intermediate scrutiny to a content-based regulation of protected adult speech.[142] H.B. 1181 directly burdens access to protected adult speech by requiring commercial websites to implement age verification protocols based on the sexually explicit nature of their content.[143] Fundamentally, age verification is a content-based regulation and should have been subject to strict scrutiny. “
Under Reed v. Town of Gilbert, legislation that singles out speech based on its message or subject matter is content-based and presumptively unconstitutional.[144] Consistent with this principle, in United States v. Playboy Entertainment Group, the Court applied strict scrutiny to a law that restricted sexually explicit cable programming, even though it was enacted to protect children, because it burdened protected adult speech.[145] In contrast, intermediate scrutiny applies only to content-neutral regulations, such as time, place, or manner restrictions, or those involving incidental effects on expression.[146]
However, H.B. 1181 is not neutral. In fact, it specifically targets websites based on the proportion of their sexually explicit content and imposes a burden on both creators and viewers.[147] Despite this, the Court applied intermediate scrutiny analogizing H.B. 1881 to draft card destruction regulation in O’Brien.[148] However, this analogy fails. Unlike the incidental regulation of conduct at issue in O’Brien, H.B. 1181directly restricts access to constitutionally protected speech. Moreover, the Court’s reasoning that any effect on adults is merely an incidental burden because minors lack a constitutional right to access the material overlooks the law’s primary chilling effect on adults’ expressive and viewing rights.[149]
Here, the precedents before us point to a legal doctrine of states having limited power to target expression more than necessary to prevent it from being accessible to children.[150] As Justice Kagan wrote in the dissent, such notion is what “foundational First Amendment principles demand.” [151] Accordingly, Texas’s H.B. 1181 is not an outlier among case law before its creation, but rather it has simply targeted adult protected speech unduly. The most concerning aspect of this decision is the Court’s departure from internet specific First Amendment precedents.
Unlike in Reno and Ashcroft, where the Court struck down federal laws that imposed relatively narrow or less burdensome restrictions on internet speech, the Court here upheld a sweeping and invasive age verification law under intermediate scrutiny.[152] In Reno, the Court invalidated provisions of the Communications Decency Act for being too vague and overly broad, emphasizing that the internet deserves full First Amendment protection.[153] Similarly, in Ashcroft, the Court struck down a federal law requiring age verification for access to commercial pornography websites, finding it failed strict scrutiny despite targeting only the most explicit material.[154] Yet, in Free Speech Coalition, the Court upheld a law that burdens all websites with one-third “sexual content,” without meaningfully engaging with narrower alternatives or the speech protective principles emphasized in those earlier decisions.[155]
By circumventing strict scrutiny, the majority allowed a law that imposes broad burdens on adult protected speech to survive with far less justification than required under the Constitution.[156] As a result, the court has reconstructed a content-based burden as a mere regulation of access, diluting the strict scrutiny standard in contexts where it is most needed, which is speech that is disfavored, stigmatized, socially and or politically unpopular.
B. Through the Lens of Strict Scrutiny
While H.B. 1181 is narrowly tailored to serve a compelling governmental interest, protecting minors from harmful sexual content, it nevertheless fails strict scrutiny because it is not the least restrictive means of achieving that interest. The government bears the burden of demonstrating that its chosen method is the most effective means available that imposes the least burden on First Amendment rights.[157] Yet, the record in Free Speech Coalition lacks sufficient evidence that age verification requirements are more effective than less speech restrictive alternatives.
In fact, the petitioners in the case identified several alternative measures the state could have taken. For example, Texas could have invested in comprehensive digital literacy and sex education campaigns aimed at youth and parents.[158] It also could have encouraged or incentivized the use of device-level parental controls, tools already built into most smartphones and browsers.[159] Furthermore, states may have also pursued a more narrowly targeted law requiring age verification only for specific high-traffic pornographic sites, rather than all websites containing one-third “sexual material,” a vague threshold that chills lawful speech. These alternatives arguably advance the state’s interest in protecting minors without imposing a blanket requirement that burdens all adults’ access to constitutionally protected material.
Crucially, the Court did not analyze whether any of these or other alternatives would have been equally or more effective. Without a meaningful inquiry into whether age verification is truly the least restrictive and most effective means of protecting minors, H.B. 1181 cannot survive strict scrutiny. Moreover, this absent inquiry undermines the state’s own objectives. If the government’s goal is to shield minors from sexually explicit content, it should seek assurance that the chosen method is not only constitutionally permissible but also the most effective at achieving that end.
C. State Paternalism in the Digital Sphere
Free Speech Coalition should not be viewed in isolation. Rather it reflects a growing trend towards state paternalism within the Court’s 2024-2025 term. In United States v. Skrmetti, the Court upheld state authority to restrict gender affirming care for minors, reasoning that such regulation was necessary to protect children from making potentially irreversible medical decisions.[160] Similarly, in Medina v. Planned Parenthood South Atlantic, the Court limited individual autonomy in selecting healthcare providers by holding that Medicaid recipients do not have a private right to challenge a state’s exclusion of providers.[161] As a result, the decision in Free Speech Coalition v. Paxton not only aligns with the broader pattern of judicial deference to state paternalism, but also signals its expansion into the digital sphere.
Paternalism, in the legal context, refers to state action that restricts individual autonomy under the justification of protecting individuals, often from harm to themselves.[162] Traditionally, paternalistic regulation has been most common in areas like healthcare, public safety, and education, where the state claims a vested interest in safeguarding vulnerable populations, particularly minors.[163] However, paternalism becomes constitutionally suspect when it limits the rights of competent adults under the guise of protecting others. [164]
Protecting minors is undeniably a compelling interest. However, the method and manner by which Texas chooses to accomplish that goal, requiring identifying information to access protected speech, reflects a new trend of paternalism within the digital sphere. The Court’s endorsement of legislation such as H.B. 1181 risks expanding the state’s authority to condition access to constitutionally protected speech under the guise of “protecting the children.”
When considering the Court’s decision in Brown v. Entertainment Merchants Ass’n to Free Speech Coal., the shift is notable.[165] In Brown, only eleven years prior, the Court rejected a California statute that prohibited the sale or rental of violent video games to minors because it failed to survive strict scrutiny.[166] The statute covered video games that allowed the player to kill, maim, dismember, or sexually assault an image of a human being.[167] The Court reasoned that “even where the protection of children is the object, the constitutional limits on governmental action apply.” Whereas in Free Speech Coalition, the Court applied and upheld intermediate scrutiny to H.B. 1181 reflecting not only a growing trend of state paternalism, but a prioritization of a state’s protective role over adults’ First Amendment right.[168]
This new form of digital gatekeeping not only chills access for minors but adults who have a right to such speech. Further, it risks normalizing state ordered digital surveillance for the sake of morality. One commercial entity reported an eighty percent drop in traffic from a state since requiring identifying information to access its websites, that percentage includes legal adult users.[169] Therefore, this chilling effect is functionally similar to an outright ban. Accordingly, the Court’s decision signals a leniency towards content-based regulations that burden access by imposing procedural obstacles rather than outright prohibitions.
This new shift echoes Butler, where the Court rejected the idea that the government could “reduce the adult population . . . to reading only what is fit for children.”[170] Here, the Court is now validating state power to limit adult access to content fit for children unless they are willing to give identifiable information to third-party websites. For example, a commercial streaming site or adult content platform may now be legally required to collect personal data from every visitor, including adults, before granting access. Essentially, the Court has authorized conditioning adults’ rights to receive protected speech on disclosure of their identity.
Rather than place the responsibility on parents, schools, or guardians of children, who have tools accessible to them such as content-filtering software, parental controls, and direct monitoring, this decision allows states to shift the burden to commercial entities and users.[171] Essentially, this decision delegates commercial websites to enforce morality, undermining personal autonomy and technological neutrality. In doing so, this decision allows for a new state approach that relies on total compliance mechanisms that burden all users regardless of age.
This expansion of state paternalism into the digital sphere may not stop at sexually explicit content. By upholding H.B. 1181’s age verification mandate, the Court has signaled that procedural burdens on access to protected speech, when framed as child protection, are constitutionally permissible. Such reasoning sets a dangerous precedent: if age verification is allowed here, legislatures may extend it to other disfavored or controversial content, including political dissent, scientific discourse, or certain religious discussion, under the justification that it could be deemed harmful to minors. Therefore, Free Speech Coalition represents not just an isolated ruling, but the Court’s growing deference to paternalistic regulation, one that risks redefining the scope of First Amendment protections for all users in the name of protecting children.
Conclusion
The Court’s decision in Free Speech Coalition represents more than a misapplication of constitutional scrutiny. It reflects a broader movement of judicial permissiveness of state paternalism. Further, it allows for state intervention in the form of “protecting the children.” By weakening the threshold for evaluating burdens on protected adult speech, the Court has opened the door to future content-based regulations that diminish First Amendment freedoms justified by moral grounds. Today, the internet remains the dominant platform for connection and expression. The shift seen in the Court’s decision should concern all who value an open and anonymous exchange of ideas.
Footnotes
[*] J.D. Candidate 2027, Loyola University New Orleans College of Law; B.A. in Anthropology and Political Science 2022, Saint Louis University. Special thanks to Judge Scott Schlegel for directing me to this case and to the 2025-2026 Loyola Law Review, especially Maeve Hurson, Molly Payne, Alejandro Medina, and Mary Helen VanHoy, for their thoughtful guidance and invaluable feedback. Most importantly, thank you to my family and friends, who always support me, encourage me, and stand by me not only through this process but throughout the journey of law school.
[1] Pew Rsch. Ctr., Teens and Internet, Device Access Fact Sheet (July 10, 2025), https://www.pewresearch.org/internet/fact-sheet/teens-and-internet-device-access-fact-sheet/.
[2] Id.
[3] Nat’l Ctr. For Educ. Stat., Access to the Internet, Inst. of Educ. Sci., https://nces.ed.gov/fastfacts/display.asp?id=46#:~:text=Internet%20Access%20from%20Home,the%20internet%20through%20a%20computer (last visited Sept. 29, 2025).
[4] See, e.g., Grace B. Jhe et al., Pornography Use Among Adolescents and the Role of Primary Care, BMJ J.: Fam. Med. & Cmty. Health (2023), https://pmc.ncbi.nlm.nih.gov/articles/PMC9853222/.
[5] Id.
[6] See Tex. Civ. Prac. & Rem. Code Ann. § 129B.002 (West 2025).
[7] See Free Speech Coal., Inc. v. Paxton, No. 23-1122, slip op. at 35-36 (U.S. June 27, 2025).
[8] See Id. at 1.
[9] See Id. at 2.
[10] Id. at 2.
[11] See Bill Sponsor: TX HB 1181 2023-2024 88th Legislature Texas House Bill 1181 (Prior Session Legislature), LegisScan, (last visited Sept. 29, 2025), https://legiscan.com/TX/sponsors/HB1181/2023 (listing primary sponsors Rep. Matthew Shaheen et. al. and cosponsors including Sen. Angela Paxton et. al.).
[12] See VICTORY! U.S. Supreme Court Upholds Texas Law Protecting Kids from Porn, Texas Values (June 27, 2025), https://txvalues.org/victory-u-s-supreme-court-upholds-texas-law-protecting-kids-from-porn/ (highlighting advocacy group’s support for the legislation and court ruling); At SCOTUS, Attorney General Ken Paxton Defends Texas Law Requiring Age Verification for Pornography Sites; Dozens of States, Lawmakers, and Experts File Briefs in Support, Ken Paxton Att’y Gen. of Tex. (Nov. 26, 2024), https://www.texasattorneygeneral.gov/news/releases/scotus-attorney-general-ken-paxton-defends-texas-law-requiring-age-verification-measures-pornography (demonstrating support from the Texas Attorney General and allied organizations).
[13] See H.B. 1181, 88th Leg., Prior Sess. Leg., Tex. (June 2023), https://lrl.texas.gov/scanned/signedBills/88-0/HB1181.pdf (passing the House and Senate with zero nays).
[14] Shaheen et al., Relating to the publication or distribution of sexual material harmful to minors on an Internet website; providing a civil penalty, LegiScan (May 13, 2023), https://legiscan.com/TX/supplement/HB1181/id/372641.
[15] Id.
[16] Free Speech Coal., Inc., slip op. at 2.
[17] Free Speech Coal., Inc., slip op. at 2 (quoting Civ. Prac. & Rem. § 129B.002(a)).
[18] See infra Section II (explaining the Miller test).
[19] Free Speech Coal., Inc., slip op. at 2 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 129B.001(a)); Free Speech Coal., Inc., No. 23-1122, slip op. at 9 (U.S. June 27, 2025).
[20] Tex. Civ. Prac. & Rem. Code Ann. § 129B.003 (West 2025); See Oral Argument at 17:37-28:10, Free Speech Coal., Inc. v. Paxton, No. 23-1122, slip op. (June 27, 2025) [hereinafter Oral Argument]. https://www.supremecourt.gov/oral_arguments/audio/2024/23-1122 (clarifying that the statute contemplates government-issued ID for “commercial age verification systems,” though Texas has no digital ID, and transactional data like mortgage application for “commercially reasonable methods”).
[21] Tex. Civ. Prac. & Rem. Code Ann. § 129B.006(a) (West 2025).
[22] Id. at § 129B.006(b).
[23] Id. at § 129B.006(c-d).
[24] Cases in Progress, FSC Action Center, https://action.freespeechcoalition.com/age-verification-resources/av-lawsuits/#texas (last visited Sept. 29, 2025); See Complaint at 1, Free Speech Coal., Inc. v. Colmenero, 689 F.Supp.3d. 373 (W.D. Tex. 2023) (No. 1:23-cv-917).
[25] See Complaint at 1, Free Speech Coal., Inc. v. Colmenero, 689 F. Supp 3d 373 (W.D. Tex. 2023) (No. 1:23-CV-917).
[26] Id.
[27] Colmenero, 689 F. Supp. 3d at 391-92 (citation omitted).
[28] Id. at 392.
[29] Id. at 414.
[30] Id. at 416-17.
[31] Free Speech Coal., Inc., slip op. at 4.
[32] Free Speech Coal., Inc. v. Paxton, 95 F.4th 263, 266 (5th Cir. 2024).
[33] Id. at 278.
[34] Id. at 278-79.
[35] Free Speech Coal., Inc., slip op. at 5 (citation omitted).
[36] Id. (citation omitted).
[37] Id. at 13.
[38] Id. at 35-36.
[39] Jaclyn Diaz, Supreme Court weighs First Amendment rights and porn in Texas case, NPR (Jan. 15, 2025, 3:05 PM), https://www.npr.org/2025/01/15/nx-s1-5260178/supreme-court-texas-porn-law.
[40] La. Stat. Ann. § 9:2800.29(B)(1) (2025).
[41] See State Age Verification Laws, FSC Action Ctr. (last visited Sept. 29, 2025), https://action.freespeechcoalition.com/age-verification-resources/state-avs-laws/.
[42] See News Serv. of Fla., A challenge to Florida’s age verification law for porn sites has been halted, WFSU Pub. Media, (Jan. 17, 2025, 11:49 AM), https://news.wfsu.org/state-news/2025-01-17/a-challenge-to-floridas-age-verification-law-for-porn-sites-has-been-halted.
[43] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (establishing well-defined and narrowly limited classes of speech that are not constitutionally protected); Roth v. United States, 354 U.S. 476, 485 (1957) (holding that obscenity is not within the area of protected speech or press).
[44] Roth, 354 U.S. at 484 (1957).
[45] Id. at 484-85.
[46] See Miller v. California, 413 U.S. 15, 24 (1973).
[47] Id.
[48] See Id. at 36-37 (1973) (announcing the three-part test for obscenity and remanding for the state court to determine whether the explicit brochures mailed by the defendant were obscene under the clarified standard); Hamling v. United States, 418 U.S. 87, 105-106, 114-15, 139-40 (1974) (applying the Miller test and upholding the defendant’s conviction for mailing an advertising brochure that graphically depicted sexual acts); Smith v. United States, 431 U.S. 291, 305, 308-309 (1977) (holding that a jury could properly apply the Miller test to find the sale of adult magazines and films obscene and affirming the conviction of a bookstore).
[49] Ginsberg v. New York, 390 U.S. 629, 636-37 (1968).
[50] Id. at 637-39.
[51] Butler v. Michigan, 352 U.S. 380, 381, 383-84 (1957).
[52] Id.
[53] Id.
[54] Free Speech Coal., Inc., slip op. at 6.
[55] Id. (citation omitted).
[56] Id. at 20.
[57] Id. at 6 (citation omitted).
[58] Colmenero, 689 F. Supp. 3d at 392 (citing Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)); see Reed v. Town of Gilbert, 576 U.S. 155, 164 (2015) (establishing that content-based laws are subject to strict scrutiny).
[59] See Sable Commc’ns of Cal., Inc., 492 U.S. at 126.
[60] See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 804-05 (2000).
[61] See Sable Commc’ns of Cal., Inc., 492 U.S. at 126; see Playboy Ent. Grp., Inc., 529 U.S. at 804-05.
[62] Free Speech Coal., Inc., slip op. at 6 (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)).
[63] Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997) (citation omitted).
[64] TikTok Inc. v. Garland, No. 24-656, slip op. at 16 (U.S. Jan. 17, 2025) (citation omitted).
[65] Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
[66] TikTok Inc., slip op. at 15 (citation omitted).
[67] Reno v. Am. C.L. Union, 521 U.S. 844 (1997).
[68] Ashcroft v. Am. C.L. Union, 542 U.S. 656 (2004).
[69] Reno, 521 U.S. at 868.
[70] Id. at 874.
[71] Id.
[72] Ashcroft, 542 U.S. at 666-70.
[73] Free Speech Coal., Inc., slip op. at 35-36.
[74] Id.
[75] Id. at 13.
[76] Id. at 6-13.
[77] Id. at 6 (quoting Ashcroft, 542 U.S. at 673).
[78] Free Speech Coal., Inc., slip op. at 6.
[79] Id.
[80] Id. at 7.
[81] Id. at 8 (citing Miller, 413 U.S. at 24).
[82] Id. at 9 (citing Ginsberg, 390 U.S. at 638).
[83] Free Speech Coal., Inc., slip op. at 13.
[84] Id. at 19; Ginsberg, 390 U.S. at 631-33.
[85] Free Speech Coal., slip op. at 15-18.
[86] Id.
[87] Id.
[88] Id.
[89] Turner Broad. Sys., Inc., 520 U.S. 180.
[90] United States v. O'Brien, 391 U.S. 367 (1968).
[91] Free Speech Coal., Inc., slip op. at 6, 18-19.
[92] Id. at 17-18.
[93] Id. at 19.
[94] Id. at 20-21.
[95] Reno, 521 U.S. 844.
[96] Ashcroft, 542 U.S. 656; Free Speech Coal., Inc., slip op. at 23-25.
[97] Free Speech Coal., Inc., slip op. at 23-25.
[98] Id. at 25-27.
[99] Id.
[100] Id.
[101] Free Speech Coal., Inc., slip op. at 31.
[102] Id.
[103] Id.
[104] Id. at 32.
[105] Id. at 18.
[106] Free Speech Coal., Inc., slip op. at 32-33.
[107] Id. at 14-15.
[108] Id. at 18-19; see, e.g., O’Brien, 391 U.S. at 376-77 (describing a law that incidentally burdens expressive conduct and applying an intermediate scrutiny test where the government interest is unrelated to the suppression of free expression); see also Turner Broad. Sys., Inc., 512 U.S. 622 (noting that incidental burdens on speech arising from content neutral regulations are subject to intermediate scrutiny rather than strict scrutiny).
[109] Free Speech Coal., Inc., slip op. at 35.
[110] Id. at 35-36.
[111] Id. at 36.
[112] Id.
[113] Id. at 23 (Kagan, J., dissenting).
[114] Free Speech Coal., slip op. at 2-3 (Kagan, J., dissenting).
[115] Id. at 3 (Kagan, J., dissenting).
[116] Id. at 23 (Kagan, J., dissenting).
[117] Id. at 4 (Kagan, J., dissenting).
[118] Id.
[119] Free Speech Coal., Inc., slip op. at 4 (Kagan, J., dissenting).
[120] Id. at 4-5 (Kagan, J., dissenting).
[121] Id. at 5-6 (Kagan, J., dissenting).
[122] Id. at 6 (Kagan, J., dissenting).
[123] Id. (Kagan, J., dissenting).
[124] Free Speech Coal., Inc., slip op. at 6 (Kagan, J., dissenting) (first citing Turner Broad. Sys., Inc., 512 U.S. at 642; then citing Reed, 576 U.S. at 164).
[125] Id. at 6-7 (Kagan, J., dissenting).
[126] Id. at 11-13 (Kagan, J., dissenting).
[127] Id. at 11-12 (Kagan, J., dissenting) (internal quotations omitted).
[128] Id. at 11 (Kagan, J., dissenting).
[129] Free Speech Coal., Inc., slip op. at 10-11 (Kagan, J., dissenting).
[130] Id. at 11 (Kagan, J., dissenting).
[131] Id. (Kagan, J., dissenting).
[132] Id. (Kagan, J., dissenting).
[133] Id. (Kagan, J., dissenting).
[134] Free Speech Coal., Inc., slip op. at 11 (Kagan, J., dissenting).
[135] Id. at 7-10 (Kagan, J., dissenting); see Sable Commc’ns of Cal., Inc., 492 U.S. 115; Reno, 521 U.S. 844; Playboy Ent. Grp., Inc., 529 U.S. 803; Ashcroft, 542 U.S. 656.
[136] Free Speech Coal., Inc., slip op. at 9-10 (Kagan, J., dissenting).
[137] Id. at 11-22 (Kagan, J., dissenting).
[138] Id. at 19-21 (Kagan, J., dissenting).
[139] Id. at 20 (Kagan, J., dissenting).
[140] Id. at 2-3 (Kagan, J., dissenting).
[141] Free Speech Coal., Inc., slip op. at 11-22 (Kagan, J., dissenting).
[142] Id. at 13; see Sable Commc’ns of Cal., 492 U.S. 115; Reno, 521 U.S. 844; Playboy Ent. Grp., Inc., 529 U.S. 803; Ashcroft, 542 U.S. 656; Reed, 576 U.S. 155.
[143] See Civ. Prac. & Rem. § 129B.002.
[144] Reed, 576 U.S. at 163.
[145] Playboy Ent. Grp., Inc., 529 U.S. at 813-15.
[146] See Ward, 491 U.S. at 791.
[147] See Civ. Prac. & Rem. § 129B.002.
[148] Free Speech Coal., Inc., slip op. at 19; O'Brien, 391 U.S. 367.
[149] Free Speech Coal., Inc., slip op. at 19.
[150] See Sable Commc’ns of Cal., Inc., 492 U.S. 115; Reno, 521 U.S. 844; Playboy Ent. Grp., Inc., 529 U.S. 803; Ashcroft, 542 U.S. 656; Reed, 576 U.S. 155.
[151] Free Speech Coal., Inc., slip op. at 19-21 (Kagan, J., dissenting).
[152] See Reno, 521 U.S. at 868 (striking down provisions of the Communications Decency Act for imposing content-based burden on internet speech); Ashcroft, 542 U.S. at 673 (holding that COPA’s age verification requirements failed strict scrutiny and were not the least restrictive means of achieving the government’s interest in protecting minors).
[153] See Reno, 521 U.S. at 868 (“[T]he Internet is not as ‘invasive’ as radio or television”); Reno, 521 U.S. at 854 (1997) (citation omitted) (“Unlike communication received by radio or television, ‘the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed that merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the internet unattended’”).
[154] Ashcroft, 542 U.S. at 666-70 (emphasizing that less restrictive alternatives like blocking software could achieve the government’s interest without suppressing a large amount of lawful speech).
[155] Free Speech Coal., Inc., slip op. at 34-35.
[156] See U.S. Const. amend. I.
[157] Paxton, 95 F.4th at 303.
[158] Oral Argument, supra note 20, at 5:57-6:45.
[159] Id.
[160] United States v. Skrmetti, No. 23-477, slip op. at 21-24 (June 18, 2025).
[161] Medina v. Planned Parenthood S. Alt., No. 23-1275, slip op. at 15-24 (June 26, 2025).
[162] See Gerald Dworkin, Paternalism, 56 The Monist 64, 65-70 (1972).
[163] See Id.
[164] See Butler, 352 U.S. 380.
[165] See Brown v. Ent. Merch. Ass’n, 564 U.S. 786 (2011).
[166] Id. at 805.
[167] Id. at 789.
[168] Free Speech Coal., Inc., slip op. at 35-36.
[169] Pornhub, Age Verification in the News, (June 30, 2025) https://www.pornhub.com/blog/age-verification-in-the-news.
[170] Butler, 352 U.S. at 383-84.
[171] See Oral Argument, supra note 20, at 5:57-6:45.
