Written by: Haim Ravia, Dotan Hammer
The Supreme Court of the United States addressed the constitutionality of Texas House Bill 1181 (H.B. 1181), a law requiring certain commercial websites publishing sexually explicit content obscene to minors to verify visitors are eighteen or older. Petitioners, representing the pornography industry, argued the law was unconstitutional under the First Amendment’s Free Speech Clause, claiming it impermissibly hinders adults’ access to protected speech.
The Court affirmed the Fifth Circuit’s decision, holding that H.B. 1181 is subject to, and passes, intermediate constitutional scrutiny. Justice Thomas, writing for the majority, explained that the law falls within states’ traditional power to prevent minors from accessing speech obscene to them, a power that “necessarily includes the power to require proof of age”. The Court reasoned that while adults have a right to access speech obscene only to minors, requiring age verification constitutes only an “incidental effect on protected speech,” not a direct regulation, thus triggering intermediate scrutiny.
Applying intermediate scrutiny, the Court found H.B. 1181 valid because it advances Texas’s “important governmental interest in shielding children from sexual content” and is “adequately tailored” to that interest. The permitted age verification methods, such as government-issued identification or transactional data, were deemed legitimate and already in use by other industries and some pornographic websites. The Court emphasized that intermediate scrutiny does not require states to adopt the “least restrictive means” or address all aspects of a problem at once.
Justice Kagan, in her dissent joined by Justices Sotomayor and Jackson, argued that the law should have faced strict scrutiny because it is a content-based regulation that directly burdens protected adult speech, not merely incidentally. Justice Kagan explained that the majority’s reasoning departed from established First Amendment principles and previous Supreme Court precedents.
Click here to read the U.S. Supreme Court’s decision in Free Speech Coalition, Inc. et al. v. Paxton, Attorney General of Texas.
