In Free Speech Coalition v. Paxton, the Supreme Court held by a vote of 6 to 3, along ideological lines, that a Texas law that requires online porn sites to verify that visitors are 18 or older does not violate the First Amendment.
Here’s my outline of Justice Thomas’s excellent majority opinion:
Two basic principles govern legislation aimed at shielding children from sexually explicit content. A State may not prohibit adults from accessing content that is obscene only to minors. But it may enact laws to prevent minors from accessing such content.
For the past two decades, Ashcroft II has been our last word on the government’s power to protect children from sexually explicit content online. During this period, the technology of the Internet has continued to evolve at a rapid pace. With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content—both benign and obscene—at almost any time and place, with an ease that would have been unimaginable at the time of Reno and Ashcroft II.
The Texas law is an exercise of Texas’s traditional power to prevent minors from accessing speech that is obscene from their perspective. To the extent that it burdens adults’ rights to access such speech, it has only an incidental effect on protected speech, making it subject to intermediate scrutiny.
Only an age-verification requirement can ensure compliance with an age-based restriction. The Texas law imposes an age-verification requirement for online speech that is obscene to minors. It does not ban adults from accessing this material; it simply requires them to verify their age before accessing it on a covered website.
Applying the more demanding strict-scrutiny standard would call into question the validity of all age-verification requirements, even longstanding requirements for brick-and-mortar stores.
Reno and Ashcroft II addressed only outright bans on material that was obscene to minors but not to adults. Further, the Court decided those cases when the internet was still more of a prototype than a finished product. The appropriate standard of scrutiny to apply in this case is a difficult question that no prior decision of this Court has squarely addressed. For the reasons we have explained, we hold today that the Texas law triggers only intermediate scrutiny.
A statute survives intermediate scrutiny 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. The Texas law readily satisfies these requirements. Texas’s interest in shielding children from sexual content is important, even compelling. The law furthers that interest by preventing minors from easily circumventing a prohibition on their accessing sexual content.
The law is also sufficiently tailored to Texas’s interest. Requiring age verification online is plainly a legitimate legislative choice. The specific verification methods that the law permits are also plainly legitimate.
Justice Kagan, joined by Justice Sotomayor and Justice Jackson, dissented: Under our precedents, strict scrutiny is the proper standard. The Texas law might well pass the strict-scrutiny test. The critical question is whether Texas can show that it has limited no more adult speech than is necessary.