By: Sophia Solomon
I. INTRODUCTION
This article is focused on the newly decided Free Speech Coalition v. Paxton that was introduced in the Texas courts and decided by the Supreme Court in June. This case overturned the precedents of free speech protected as it was afforded to material deemed “obscene” for minors and introduces new complexities regarding the First Amendment. This decision starts with the approval of the Texas law at issue “HB 1181”. The main goal of this law was to require websites that contain one third or more of obscene content deemed harmful to minors to have an age verification to access their site.[1] The age verification required could either be a government issued identification or commercially reasonable method that relies on public or private transactional data.[2] The declared purpose of this law was to protect children from the dangers of accessing “obscene” online content.[3] The law was challenged by the owner of a website that would be regarded as “obscene for minors” under this law and was eventually granted certiorari by the Supreme Court. The Supreme Court held that this statute falls under the “intermediate scrutiny” level of review.[4]
II. BACKGROUND
In June 2025, the Supreme Court, with a 6-3 majority, upheld the proposed Texas law requiring age verification for websites containing a significant amount (one-third or more) of sexual content “harmful to minors.”[5] The key holding specifically states that this law only places “incidental burden” upon adults’ access to protected speech by mandating an age requirement.[6] Further, courts should now apply the standard of “intermediate scrutiny” instead of “strict scrutiny,” mainly because content obscene for minors is within the state’s purview to restrict through age verification.[7] If strict scrutiny were applied to this statute, then all age verifications would be questioned as to their constitutionality.[8] This was a departure from the precedent that was affirmed in Ashcroft v. ACLU, the principal case in regard to “strict scrutiny” and how that applies to protected speech under the First Amendment.[9] The former precedent of “strict scrutiny” stated that when the courts were evaluating a law that is “content-based” or “viewpoint-based,” it was required that there be a compelling, or at least a very strong interest, in the law and the law must be narrowly tailored or the least restrictive means available.[10]
The test for intermediate scrutiny that is to be applied now when evaluating laws relating to explicit content potentially harmful to minors is as follows: 1) there must be an important government interest, 2) the law cannot limit protected speech and 3) the law should only “incidentally burden” speech.[11] Justice Thomas reasoned in Paxton that the goal for the law was to protect children online, and did not limit protected speech, since there is no right to access obscene content for adults without age verification.[12] Justice Thomas stated that this small burden is not problematic enough for it to be deemed unjust, especially since there are already measures for age verification for other “adult activities,” like driving and buying alcohol.[13]
In Paxton, the plaintiff decided to file suit against a newly enacted Texas law.[14] The statute, H.B. 1181, dictates that if “more than one-third” of a website’s content is deemed to be “sexual material harmful to minors”, then the website must implement age verification methods to limit access to adults only.[15] Further, if the website crossed the one-third threshold, additional “health warnings” on their “landing pages and advertisements” were required.[16] The definition of “sexual content harmful to minors” was created using a modified version of the Miller test for obscenity, specifying that the state had a larger and more expansive interest in broadening what is “obscene” for minors, enlarging the Miller requirements from its original purpose.[17]
Before the law could take effect, plaintiffs sued on the basis that H.B. 1181 violates the First Amendment, and that for some plaintiffs the law conflicts with Section 230 of the Communications Decency Act, which created immunity for third-party content on the basis that the platform is not the originator of the content but merely a distributor.[18] First, the lower court found that this law fails strict scrutiny and fails to achieve a compelling government interest by using the “least restrictive means possible”.[19] Later, the Court of Appeals for the Fifth Circuit found that “rational basis review” which is “rationally related” to a legitimate government interest was the appropriate standard of review and “vacated the injunction” against the age verification provision but granted the abandonment of the health warnings.[20] When the Supreme Court granted certiorari, the main issue was whether the statute was “subject to rational basis review or strict scrutiny.” [21]
The Supreme Court found, with Justice Thomas delivering the opinion, that this law was subject to “intermediate scrutiny” because it poses only an “incidental burden” on adults’ freedom of speech rights and maintains a compelling interest by protecting children from sexually explicit content online.[22] The Court’s concluded that the First Amendment granted states the right to prevent children from accessing content online that is “obscene from their perspective,” and this power includes enforcing age limits through age verification requirements.[23] Further, since the First Amendment does not protect a right to access “obscene-to-minors content without verification, this law does not prevent protected activities, and adults retain this right after an incidental burden of verification.[24] Justice Kagan’s dissent mainly takes issue with the majority’s rationale for applying intermediate scrutiny¾specifically, that prior precedent would dictate this law be subject to strict scrutiny.[25] Justice Kagan argued that the Texas law at issue was “content-based” and therefore should have been subject to strict scrutiny, as other content-based laws had been.[26] Another concern Justice Kagan takes in her dissent is that a “chilling effect” may occur because website users could be deterred from accessing a website knowing the website owner has their identification on record.[27] Further, Justice Kagan argued that the Texas law may not be the least-restrictive means possible to satisfy this compelling government interest.[28]
III. ANALYSIS
The main arguments in support of the law were (1) the main goal of the required age verification process was to limit the possibility of harm to children, and the small burden of verification did not outweigh its benefits; (2) there was a strong interest by the Texas Legislature to protect children living within their constituency; (3) the law does not regulate protected speech, only placing a small barrier on how adults can access speech they are entitled to.[29] The main concern with the law was that it does place undue burden on adults who are attempting to access the protected speech.
The ACLU and various LGBTQIA+ communities had additional concerns with this law, stating that the Supreme Court decision signals a broader problem with the legal system.[30] These groups’ concerns specifically focused on censorship and potential attacks toward vulnerable communities. One pressing concern is that the standard listed within the Act defines “sexual material harmful to minors” as “material that is obscene from the perspective of an average person considering the material’s effect on minors.”[31] This has been seen by critics as “vague” and could be weaponized to attack multiple other forms of media.[32] These groups also criticized the law for not accomplishing its “intended purpose,” since much of the sexual content online that can be accessed by minors is on “forums or social media platforms”, both of which do not require verification under HB 1181.[33]
Justice Kagan’s concerns in the dissenting opinion emphasized that the majority have created a murky category of “partially protected speech” and deviated from four prior Supreme Court precedents applying strict scrutiny to similar cases.[34] When examining the arguments for and against the majority’s decision, one question sticks out: what next? In the current situation of political extremism and with aspects of religious morality being imputed onto more legislative decisions, individual states determining what is and is not sexually explicit for minors can result in very different outcomes. Some states have deemed certain LGBTQIA+ sexually explicit for minors, so the concern arises that those types of media may become difficult or even impossible to access without verification.[35] Further, what about adults in these restrictive states that are afraid of their digital footprint being accessible to people monitoring the sites’ verification programs? This shows how the majority’s argument that adults only go through an “incidental burden” to access the content can be broken down. This begs the question of whether websites advocating for certain healthcare measures such as birth control and other contraceptives may also be deemed “sexually explicit,” therefore cutting people off from these resources.
The argument of protecting children online is certainly a compelling government interest, especially with the rise of AI and the implications of the sexual content that can be generated online. The goal of the Texas legislation at face value can be easily understood by many to be a net positive. But, upon closer reflection there are flaws with this approach, and other solutions would likely have better outcomes. For example, a site like “X” has a plethora of adult content because of its poor monitoring, and children continue to be present on the platform. However, since “X” does not meet the more than one-third threshold needed, the Texas law does not affect the site. One could also argue that minors looking to access adult content online could easily do so on this platform without going to platforms dedicated to specifically to explicit content.
Lastly, the shift into the immediate scrutiny standard instead of strict scrutiny can have significant future implications, especially in the context of First Amendment issues. Under intermediate scrutiny, the government must show that the law in question is substantially related to a government interest and that the law is an appropriate means to achieve that goal and does not have to rely on the “least restrictive means.”[36] The application of this standard rather than strict scrutiny may result in both an increase in legislators encouraging speech-restrictive laws and an increase in state courts upholding these laws. Additionally, there will likely be states that put forward limiting laws that satisfy the intermediate scrutiny standard, but that the Supreme Court did not anticipate when deciding Paxton.
IV. CONCLUSION
When evaluating the pros and cons of the Texas law in Paxton, there are balancing concerns between keeping children safe online and attacking other forms of expression, such as drag shows, that have already been deemed “obscene for children” in other states. While critics of the Texas law say that it places a new burden on different forms of creativity from groups who are already deemed “obscene” by certain legislatures, the law itself points out its only objective is to keep sexually obscene material away from minors.[37] Certain minority groups inside the LGBTQIA+ can lobby for less restrictions, since these groups have already had their identities and art forms deemed “obscene”, and the results have been book banning and censorship of their communities from public life.[38] While the Texas law has not been deemed to place undue burden upon adults accessing protected speech and has only been used to require age verification on “adult content sites”,[39] it does speak to a new unprecedented way the Court interprets First Amendment standards of protected speech. What this new interpretation will mean in the context of the rapidly changing digital landscape and heightened politicized judiciary is particularly important, and Paxton shows that precedent is subject to change.
[1] Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 462 (2025).
[2] See id. at 462–63.
[3] See id. at 466-68.
[4] Id. at 465.
[5] Id. at 462.
[6] Free Speech Coal., Inc. v. Paxton, Oyez, https://perma.cc/C2GF-L8ZB (last visited Apr. 27, 2026).
[7] Id. at 478-481.
[8] See id.
[9] See generally Ashcroft v. ACLU, 542 U.S. 656 (2004).
[10] Free Speech Coal., Inc. v. Paxton, supra note 6.
[11] Paxton, 606 U.S. at 492-495.
[12] Free Speech Coal., Inc. v. Paxton, supra note 6.
[13] See Paxton, 606 U.S. at 462.
[14] Id. at 468-69.
[15] Id. at 467.
[16] Free Speech Coal., Inc. v. Paxton, supra note 6.
[17] Paxton, 606 U.S. at 473.
[18] See id. at 475.
[19] Id. at 469.
[20] Id. at 469-70.
[21] Free Speech Coal., Inc. v. Paxton, supra note 6.
[22] Paxton, 606 U.S. at 495.
[23] Free Speech Coal., Inc. v. Paxton, supra note 6.
[24] Id.
[25] See Victoria L. Killion, Supreme Court Upholds State Age Verification Requirement for Certain Websites, Cong. Rsch. Serv. (Aug. 28, 2025), https://perma.cc/Q6T2-2WCY.
[26] Ryan Mrazik, Michael R. Huston & Anna Thompson-Lanners, Free Speech Coalition v. Paxton: What the Supreme Court’s Age Verification Decision Could Mean for All Websites—Not Just Adult Ones, Perkins Coie (July 24, 2025), https://perma.cc/5TTK-XEXJ.
[27] Paxton, 606 U.S. at 504 (Kagan, J., dissenting).
[28] See id. at 508.
[29] See generally Paxton, 606 U.S. 461.
[30]See Free Speech Coalition, Inc. v. Paxton, Am. Civil Liberties Union (July 18, 2025), https://perma.cc/EJT8-WUDR.
[31] Id.
[32] Id.
[33] ACLU Comment on Supreme Court Decision in Free Speech Coalition v. Paxton, Am. Civil Liberties Union (June 27, 2025), https://perma.cc/Y9KQ-MZ23.
[34] Kagan was referencing four different cases where strict scrutiny was applied because various laws were seen as impeding adults from accessing restricted speech. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989) (The Court applied strict scrutiny because the law burdened adults’ access to constitutionally protected speech.); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (This case challenged a provision of the Telecommunications Act requiring cable operators to either fully scramble sexually explicit channels or limit transmission to late-night hours.); Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (The Supreme Court’s first major internet speech case, the court struck down provisions of the Communications Decency Act of 1996 as it suppressed a large amount of constitutionally protected speech.); Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) (This Supreme Court case was eerily similar to Paxton, where the Supreme Court interestingly applied strict scrutiny because the Court found that the age verification system was not the least restrictive means available.). See Paxton, 606 U.S. at 463.
[35] See CJ Larkin, The Supreme Court’s Free Speech Coalition v. Paxton Decision Is a Privacy Nightmare for LGBTQ+ People, LGBT TECH (June 27, 2025), https://perma.cc/5HVV-Y9JY.
[36] Paxton, 606 U.S. at 463.
[37] See ACLU Comment on Supreme Court Decision in Free Speech Coalition v. Paxton, supra note 33.
[38] See Larkin, supra note 35.
[39] See ACLU Comment on Supreme Court Decision in Free Speech Coalition v. Paxton, supra note 33.
About the Author:
Sophia Solomon is a first year J.D. candidate at Penn State Dickinson Law. Originally from Uniontown, Pennsylvania. Sophia graduated Cum Laude from Seton Hill University with a Bachelor of Arts in Political Science and Global Studies. Before entering law school, Sophia worked as a legal assistant at Davis and Davis Attorneys at Law and the Proden & O’Brien Law Firm. Sophia accepted a position with Dentons Cohen and Grigsby in Pittsburgh for this summer.
Suggested Citation: Sophia Solomon, Free Speech Coalition v. Paxton: Shifting First-Amendment Attitudes, Penn St. L. Rev.: F. Blog (May 1, 2026), https://www.pennstatelawreview.org/the-forum/free-speech-coalition-v-paxton-shifting-first-amendment-attitudes/.