What’s Happening With Age Verification Laws? First Amendment Analysis

What happened?

On Jan. 15, 2025, the U.S. Supreme Court heard a case about limiting access to adult content that raises First Amendment questions. Free Speech Coalition v. Paxton involves a challenge by the Free Speech Coalition, a group that represents the adult entertainment industry, to a Texas law that requires websites with a certain amount of content that the law defines as “sexual material harmful to minors” (but more commonly referred to as “adult” or “pornographic” websites) to verify the age of all users and ensure those users are at least 18 years old.

The justices struggled with how to balance the goals of both protecting children and ensuring that adults can access content that is protected by the First Amendment but generally seemed ready to empower states to act to protect children. The question is whether Texas and other states with similar laws are violating adults’ First Amendment right to access pornography online by making them provide government ID they don’t want to give — or perhaps don’t have — to access a website or by creating a burden on the websites themselves that results in their shutting down or being entirely unavailable in a state with this type of law.

There seem to be at least five justices who would answer no and vote to uphold the Texas law. But on what basis?

They seemed to favor two options:

Use a lower standard of review for laws aimed at protecting children from accessing harmful content online.

Traditionally, even laws designed to restrict access to pornography or adult content have been considered “content based” because they restrict speech — which under the First Amendment encompasses many types of expression including sending messages with words, pictures, videos or art — because of what is being expressed (not how it is being said). The government looks at what is appearing on the screen (or the page), doesn’t like it and acts to restrict it. Content-based laws are subject to what is known as “strict scrutiny” review. In this case, that means the government would have to show (1) there is a compelling reason for the law — that children are harmed mentally and emotionally when they access pornography online — and (2) that requiring age verification to prevent minors from accessing pornography is the only way to protect children from that harm.

The question is whether, in protecting children from harm, the law infringes on adults’ First Amendment right to access this content. For instance, an adult who doesn’t have a driver’s license or other accepted form of government ID might not be able to access these websites. And some websites might cease to exist at all because they don’t want to engage in age verification or don’t have the money to go through this process.

But several justices seemed to agree with Texas that a lower standard of review might be appropriate for online pornography cases. That lower standard would require simply a “rational basis” for the law. That means that there is proof of a connection between children who view pornography online and an impact on their mental and emotional health and that age verification will limit access to the harmful content. A majority of justices signaled they would hold that the law meets this standard — if it is the standard they apply in the end.

But, as the Free Speech Coalition and the Biden administration explained, using rational basis review would be a big change in how courts have usually approached these cases. The reason: the Supreme Court historically has applied strict scrutiny when reviewing content-based laws, and it has not changed the level of review based on the media involved.

Find that the law satisfies the higher strict scrutiny standard.

Most laws that are content based fail to survive strict scrutiny review. No one seemed to dispute that protecting children from accessing adult content online is justifiable. But there were several questions about whether current age verification tools like uploading a scan of a driver’s license or submitting to a facial scan that could determine whether they are 18 or older would work and would present minimal — if any — impact on adults’ ability to access adult websites. But several justices seemed to believe that improvements in age verification tools since the first round of cases involving these issues (in the late 1990s and early 2000s) allow for Texas and other states to mandate their use. They also seemed skeptical of other alternatives raised by the Free Speech Coalition, such as filtering software, to prevent children from seeing certain content.

Now what happens?

The court will likely issue a ruling in late spring.

If the court rules for Texas, the law will be enforceable once again. This would presumably be the case for a similar law from Tennessee that was just upheld by the U.S. Court of Appeals for the 6th Circuit and 17 others around the country beyond Texas and Tennessee. It would also mean more states could pass similar laws — or perhaps the federal government would act to create a national standard. And if the court reduces the level of scrutiny applied to online pornography, it means we could see significantly more regulation of adult content and minors’ access to online content overall, including perhaps court approval of similar laws preventing children from accessing social media platforms.

If the court rules for the Free Speech Coalition, Texas will be prevented from enforcing this law for the time being because the Supreme Court is only reviewing the Free Speech Coalition’s request that the law not be enforced immediately (called a “preliminary injunction”). Instead, the Supreme Court will likely send this case back to a lower court — probably the U.S. District Court — to seek more evidence of problems with the law to determine whether it must be struck down permanently (which is almost always the case after a court issues a preliminary injunction).

What does it mean for me?

If you are one of an estimated 58% of Americans who view pornography online, it could soon get more difficult — or impossible, depending on your age — to view that content. If the Supreme Court upholds the Texas law, then adults in that state — or the 18 other states with similar laws (and any that pass them later) — will need to upload a driver’s license or provide some other proof that they are 18 or older to access content that meets the law’s definition of “sexual material harmful to minors” (which includes not just sexual acts but also animated depictions of sexual acts and actual or animated nudity). Anyone under 18 would be prohibited from accessing adult content in those states.

How did this case start?

Texas is one of 19 states that passed laws requiring age verification to limit minors’ access to adult content online.

The Texas law that was enacted in 2023 requires any website with more than one-third of its content seen as “sexual material harmful to minors” to both:

• Verify the age of their visitors to ensure that only adults can access the site.
• Display required health warnings about the effects of viewing pornography on all landing pages and ads.

The law defines “sexual material harmful to minors” as material that:

• Appeals to the sexual interest of minors, when applying local community standards.
• Is patently offensive with respect to minors because it has actual, simulated, or animated depictions of nudity or sexual acts.
• Lacks serious literary, artistic, political or scientific value for minors.

Websites can verify users’ ages by requesting that the user upload a scan of a government-issued ID or use a third party to verify ages. Penalties imposed on the websites for not doing so are steep: $10,000 per day for lacking age verification notices and $250,000 for each time that a minor accesses “sexual material harmful to minors.”

How did the case get to the Supreme Court?

The Free Speech Coalition sued Texas Attorney General Ken Paxton to prevent the law from going into effect. A U.S. District Court in Texas stopped both parts of the law from going into effect, saying it violates the First Amendment. That court held that the age verification portion of the law tries to restrict pornography based on its content, which is not allowed under the First Amendment unless the law passes strict scrutiny review. The court said that although the state has an interest in restricting minors’ access to pornography, the age verification requirement will not accomplish this goal (as it’s too easy for minors to bypass) while also preventing some adults – those that don’t have government ID or don’t want to upload it in order to view a website – from accessing the content. The required notices were seen by the district court as too burdensome and, therefore, prevented from going into effect.

The U.S. Court of Appeals for the 5th Circuit overturned the lower court’s verdict in part. It said the law needed to be written in a way that is related to the government’s legitimate interest in protecting children. The court said the age verification requirement met this standard, but it said the required health warnings are likely to violate the First Amendment’s prohibition on compelled speech and retained the injunction that prevents that portion from being enforced.

RELATED: How does a case get to the Supreme Court?

What does the Free Speech Coalition argue?

The Free Speech Coalition challenged the law on First Amendment grounds, saying it puts an unnecessary burden on adults who wish to access the content by forcing them to reveal their name and age. They say there are other ways to keep children away from the content, which includes pornography, without also putting a burden on adults, such as by using filtering software.

What does the state of Texas say?

Texas justifies the law by comparing it to existing – and court-approved – requirements that physical stores restrict children’s access to pornography. Texas says these are not based on the content involved but on the need to protect children’s well-being. The state claims its methods are valid because they focus on the most harmful content and because the filtering software advocated by the Free Speech Coalition has historically failed to work in this regard.

This article was updated Jan. 31, 2025. It will be updated with future developments.

Kevin Goldberg is a First Amendment specialist for Freedom Forum. He can be reached at [email protected]