On June 27, 2025, the United States Supreme Court weighed in on the ongoing debate about age verification requirements for websites, holding that it is constitutional for a state to require websites that have a significant portion of adult content to implement commercial age verification systems.
The case is Free Speech Coalition, Inc. v. Paxton, No. 23-122, 606 U.S. ___ (June 27, 2025), and while the law at issue in Free Speech Coalition applies only to pornographic websites—statutorily defined to include only adult entertainment websites—the Court's approach could suggest that even broader age verification requirements for other online websites and services may be constitutional as well.
Brief Summary of Decision
Free Speech Coalition addressed Texas Bill 1181 ("H.B. 1181"), which requires websites with more than one-third of their content being "sexual material harmful to minors" to enact specific age verification methods. Slip op. 2. Covered website operators have only two options to verify ages: they could use (1) a "commercial age verification system" that uses "government-issued identification," or (2) "a commercially reasonable method that relies on public or private transactional data." Id. at 2–3. Such verification can be conducted in-house or via third parties. Id. at 3. The question was whether H.B. 1181 was unconstitutional under First Amendment free speech principles.
1. Majority Opinion: Intermediate Scrutiny Applies and Is Satisfied
The majority held that the state law was not unconstitutional. The Court's opinion was drafted by Justice Thomas, joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett. The majority determined that H.B. 1181 didn't ban speech—it just made it harder to access in service of a legitimate objective: denying children access to this material. Slip op. 13–14. The Court further held that adults don't have a constitutional right to not deal with age verification; they have a right ultimately to access the content. Id.
In reaching this conclusion, the majority rejected the argument that strict scrutiny, not intermediate scrutiny, was the appropriate level of review here because Texas's law was content-based. Slip op. 13. The Court distinguished prior cases that had considered outright "bans" of obscene content for children, finding that the law here imposes a "lesser burden[] aimed at distinguishing children from adults directly." Id. at 29. The Court further held that intermediate scrutiny was satisfied here: "a law will survive review 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." Id. at 6 (internal quotations omitted).
Most importantly looking forward, for websites not including adult entertainment, the majority opinion leaves open the possibility that states could require age verification or something similar on other websites—not just the ones contemplated by H.B. 1181 as having more than one-third pornographic content. In practice, applying to websites with such a high ratio of pornographic content makes H.B. 1181 reasonably applicable only to adult entertainment websites; here, for example, Pornhub was "one of the websites involved in this case." Slip op. at 15. The challengers to the Texas law had argued H.B. 1181 wasn't "appropriately tailored" because it failed to equally limit "search engines and social media websites, where children are likely to find sexually explicit content." Id. at 34–35. But the majority found Texas had a "reasonable basis" for leaving out those categories. Id. Notably, however, the Court did not say that a ban on search engines and social media websites would fail intermediate scrutiny; it simply found that it was reasonable for Texas not to extend the requirements of this law to them.
2. Dissenting Opinion: Strict Scrutiny Applies and May Not Be Satisfied
The dissent, authored by Justice Kagan and joined by Justices Sotomayor and Jackson, disagreed with the use of intermediate rather than strict scrutiny, reasoning that this law is clearly content-based and that longstanding Supreme Court precedent requires application of strict scrutiny for content-based laws. The dissent accused the majority of reverse engineering the process—that is, picking the desired level of scrutiny and then working backward—to reach the preferred result. Dissent at 12. The dissent also emphasized that such a law burdens affected websites, too, in addition to the visitors themselves. Id. at 5. If the higher standard of scrutiny had applied, it is unclear how the case would have been resolved and whether the state law would have survived.
Broad Takeaways and Potential Implications
The law at issue in Free Speech Coalition applied exclusively to adult-content websites. But the opinion itself could have broad ramifications for future laws and other websites. Taken to its logical end, Free Speech Coalition appears to hold that states may impose stringent and specific age-verification requirements for websites that house obscene content—which could deter adult consumers who are required to jump through these hoops to access this content. Such requirements could carry varying degrees of burdens and disincentives: while the majority gave great deference to the use of age verification, it did not label the practice as the be-all and end-all. Instead, states could theoretically impose other requirements, which may have potential privacy and logistical complications, such as parental signatures, biometric identification, or in-person ID checks. (The majority even contemplated biometric identifiers as one potential—see slip op. 34, n.14.)
More abstractly, the Court's adoption of intermediate scrutiny in this context could signal greater openness for a whole host of laws that sequester age-inappropriate content using various methods. If Free Speech Coalition is any indicator, this First Amendment analysis will also be judged from the perspective of the adult user, not the company that is obligated to comply. Companies will need to monitor such changes, evaluating them against the elastic measure of intermediate scrutiny to assess whether a law passes constitutional muster.
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