Free Speech Coalition v Paxton

Supreme Court decision on viewing adult content

Photo by Wesley Tingey on Unsplash

Restricting adult right to view Constitutionally protected content. The Court ruled 6 to 3 that the Texas law placing these restrictions is Constitutional.

FREE SPEECH COALITION, INC., ET AL. v. PAXTON, ATTORNEY GENERAL OF TEXAS

No. 23–1122. Argued January 15, 2025—Decided June 27, 2025

On Friday, June 27, 2025, the Supreme Court ruled in favor of the Texas Attorney General that the law imposed in Texas requiring age verification for anyone going to a pornographic site is Constitutional. The vote was 6 in favor and 3 opposed.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kagan, J., filed a dissenting opinion, in which Sotomayor and Jackson, JJ., joined.

I am not a lawyer, but here is how I understand it:

The Texas law requires anyone going on to an internet pornography site where material inappropriate for children is displayed must verify their age. Proof identifying the person is required.

Free Speech Coalition, Inc. v. Paxton deals with the First Amendment of the U.S. Constitution, which protects free speech rights. The Supreme Court's decision focused on whether Texas's age verification law for accessing sexually explicit content infringed upon these rights.

Strict Scrutiny

In dispute among the Justices is whether this case called for strict scrutiny. Applying strict scrutiny in the Supreme Court means that the court will closely examine a law or government action that infringes on a fundamental Constitutional right or involves a suspect classification, such as race. The government must prove that the law serves a compelling interest and is narrowly tailored to achieve that interest using the least restrictive means possible.

No one disagrees that children should be shielded from websites that display adult content. No one disputes that adults have a Constitutional right to view that content.

The State has a compelling interest in keeping potentially harmful content from being accessed by children. Children have no Constitutional right to view the material.

When a right under the Constitution is infringed upon to accommodate the interest of the state, the state under strict scrutiny must use the least restrictive means possible.

The 6 Justices who decided in favor of Paxton argued that strict scrutiny was not required and they likened the law to someone merely being asked to show an ID to buy alcohol or cigarettes.

Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, dissenting.

Justice Kagan writes a powerful dissenting opinion. Here’s the first part:

 No one doubts that the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm. Or to say the same thing in legal terms, no one doubts that States have a compelling interest in shielding children from speech of that kind. What is more, children have no constitutional right to view it. The Texas statute before us (H. B. 1181) addresses speech understood in First Amendment law as “obscene for minors.” That label means the First Amendment does not protect the speech for minors. The State can restrict their access without fear of colliding with the Constitution.

 The trouble comes in the last two sentences’ italics. Speech that is obscene for minors is often not so for adults. For them, the category of obscene—and therefore unprotected speech—is narrower. See ante, at 8–10. So adults have a constitutional right to view the very same speech that a State may prohibit for children. And it is a fact of life—and also of law—that adults and children do not live in hermetically sealed boxes. In preventing children from gaining access to “obscene for children” speech, States sometimes take measures impeding adults from viewing it too—even though, for adults, it is constitutionally protected expression. What, then, to do?

 Cases raising that question have reached this Court on no fewer than four prior occasions—and we have given the same answer, consistent with general free speech principles, each and every time. Under those principles, we apply strict scrutiny, a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content. See ante, at 6. And laws like H. B. 1181 fit that description: They impede adults from viewing a class of speech protected for them (even though not for children) and defined by its content. So when we have confronted those laws before, we have always asked the strict-scrutiny question: Is the law the least restrictive means of achieving a compelling state interest? See ibid. There is no reason to change course.

 A law like H. B. 1181 might well pass the strict-scrutiny test, hard as it usually is to do so. As just noted, everyone agrees that shielding children from exposure to the sexually explicit speech H. B. 1181 targets is a compelling state interest. And Texas might be right in arguing that it has no less restrictive way to achieve that goal: It is difficult, as everyone also agrees, to limit minors’ access to things appearing on the internet. If H. B. 1181 is the best Texas can do—meaning, the means of achieving the State’s objective while restricting adults’ speech rights the least—then the statute should pass First Amendment review.

 But what if Texas could do better—what if Texas could achieve its interest without so interfering with adults’ constitutionally protected rights in viewing the speech H. B. 1181 covers? That is the ultimate question on which the Court and I disagree. The majority says that Texas may enforce its statute regardless, because only intermediate scrutiny applies and that test does not ask whether a State has adopted the least speech-restrictive means available. I disagree, based on conventional First Amendment rules and the way we have consistently applied them in this very context. The State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary.

 The majority’s opinion concluding to the contrary is, to be frank, confused. The opinion, to start with, is at war with itself. Parts suggest that the First Amendment plays no role here—that because Texas’s law works through age verification mandates, the First Amendment is beside the point. See ante, at 13–18. But even the majority eventually gives up that ghost. As, really, it must. H. B. 1181’s requirements interfere with—or, in First Amendment jargon, burden—the access adults have to protected speech: Some individuals will forgo that speech because of the need to identify themselves to a website (and maybe, from there, to the world) as a consumer of sexually explicit expression. But still, the majority proposes, that burden demands only intermediate scrutiny because it arises from an “incidental” restriction, given that Texas’s statute uses age verification to prevent minors from viewing the speech. See ante, at 13, 18–19. Except that is wrong—nothing like what we have ever understood as an incidental restraint for First Amendment purposes. Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so. That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny.

 The majority’s attempt to distinguish our four precedents saying just that rounds out the list of its errors. According to the majority, all of those decisions involved prohibiting rather than merely burdening adults’ access to obscene-for-children speech. See ante, at 21. But that is not true. And in any event it would not matter: The First Amendment prevents making speech hard, as well as banning it outright. So on all accounts the majority’s rationale craters.

 The majority is not shy about why it has adopted these special-for-the-occasion, difficult-to-decipher rules. It thinks they are needed to get to what it considers the right result: giving Texas permission to enforce its statute. See ante, at 19–21. But Texas should not receive that permission if it can achieve its goal as to minors while interfering less with the speech choices of adults. And if it cannot, then Texas’s statute would survive strict scrutiny, given the obvious importance of its goal. For that reason, the majority’s analysis is as unnecessary as it is unfaithful to the law.

Justice Kagan has it right in my opinion. Restricting the Constitutional rights of people is hardly comparable to carding someone buying beer. If the government is seeking to put conditions to exercising that right, they must use the least restrictive means possible.

Why is this so important?

The Trump regime is certainly willing to restrict the Constitutional rights of American citizens. Any case brought before the Court must receive strict scrutiny. This case, we hope, does not guide future considerations of Constitutional rights.

Link:

Writing for the majority opinion is Justice Thomas.

Writing for the minority opinion is Justice Kagan.

Thanks for dropping by.