WASHINGTON — The U.S. Supreme Court on Friday issued its decision in Free Speech Coalition v. Paxton, striking a blow against the online adult industry by ruling in support of Texas’ controversial age verification law, HB 1181.
The issue before the court was what standard of review should apply to such a law, which aims to protect minors — but in the process may burden adults’ access to protected speech. A lower court applied only the “rational basis” standard, whereas FSC, its fellow plaintiffs and free speech advocates maintained that the highest level of judicial review, “strict scrutiny,” should apply.
The court declared that only “intermediate scrutiny” is required because HB 1181 “only incidentally burdens the protected speech of adults,” and that applying intermediate scrutiny shows the Texas law to be constitutional.
The decision was 6-3. Justice Thomas wrote the opinion for the majority, with Justices Roberts, Alito, Gorsuch, Kavanaugh and Barrett joining. Justice Kagan dissented, joined by Justices Jackson and Sotomayor.
“H.B. 1181 has only an incidental effect on protected speech, and is therefore subject to intermediate scrutiny,” the decision reads. “The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person — adult or child — has a First Amendment right to access such speech without first submitting proof of age.”
The decision called the petitioners’ counterarguments “unpersuasive,” noting that the contention by FSC and its fellow plaintiffs that “other means of protecting children are more effective and that children are likely to encounter sexually explicit content on other websites due to HB 1181’s requirements does not apply, since intermediate scrutiny does not require states to adopt the “least restrictive means” of protecting minors online.
The court’s ruling is expected to impact implementation of state age verification laws around the country, as well as other pending litigation. Some cases that were put on hold in anticipation of the court’s decision in this case, including in Texas, Indiana and Florida, can now be expected to advance, as can similar legislative proposals in other states.
HB 1181 was passed by the Texas legislature in May 2023 and is a much-augmented version of Louisiana’s age verification law and its many copycat versions in other states. FSC has condemned the law as “blatantly unconstitutional” and a “violation of the First Amendment rights of creators, consumers and platforms.”
This is breaking story. XBIZ will continue to update this story as more information becomes available.
