Jennifer Huddleston
The Supreme Court recently ruled that a Texas law that requires age verification to access sexual material harmful to minors was subject to intermediate scrutiny in Free Speech Coalition v. Paxton. Advocates of age verification have trumpeted this as a significant win; however, the ruling should properly be understood in a narrow context. Not only does the Court’s decision upholding this law raise concerns about the potential chilling effect on speech, but it also comes as there are numerous attempts at broader age-verification regulations in Congress, the states, and around the world. These laws in other countries have a significant impact on the privacy and expression of all users of the internet, not just kids and teens. So, what impact will the Court’s recent decision have on the future of age verification and the constitutionality of such laws?
What the Court Decided in Free Speech Coalition v. Paxton
In a 6–3 decision, the Supreme Court held that a Texas law requiring age verification for websites containing more than a certain amount of sexual content that could be considered obscene to minors requires users to verify their age and survived intermediate scrutiny. In reaching its decision, the Court focused not on the internet more generally but on the tradition of using age verification in offline contexts to protect children from similar content.
Its reasoning focused on the way similar requirements have been upheld in the offline environment as within the state’s interest. Notably, the court rejected both the state’s claim that the law only needed rational basis scrutiny and the plaintiff’s argument that it deserved strict scrutiny, landing instead on an intermediate scrutiny standard.
It should be noted that this decision leaves some questions unanswered. For example, the Texas law’s definition of covered content is broader than the traditional definition of “pornography” and does not distinguish between a child’s age, whether they are 2 or 17. As a result, it could potentially limit access to important and age-appropriate content for older teens around reproductive rights or sexuality.
Second, it is unclear if the law must apply to the entire website or only the portion of the website that is considered adult content. For example, could general-purpose websites that may have certain sections or content that fall under the law, such as Tumblr, X, or Reddit, age-gate only those portions of their content, or must they apply age-verification more generally?
The challenge before the Court was a facial challenge, meaning it approached the law’s constitutionality before it had actually been applied or enforced against any particular party. Some of these questions that distinguish the Texas law from similar laws in other states, like Louisiana and Utah, could arise in future litigation under an “as applied” challenge if or when the law is enforced.
While the Court found the law survived intermediate scrutiny, it is important to note some of the distinctions that may still give concern. While adults want to protect children from seeing potentially harmful sexually obscene content, the requirements under state laws for age-verification online still raise concerns that are distinct from similar offline age verification requirements. As discussed above, there are more questions about how it applies to a general-purpose site or content that might include Renaissance art or important health information like how to do a self-exam for breast cancer. As the dissent notes, this could limit or chill speech or worse be used by the government to limit certain types of speech.
Second, the ways age verification is conducted online are more privacy intrusive than a traditional ID check at a store and raise greater concerns about security risks. Unlike a momentary glance by a cashier, companies typically must store such data in some way to ensure that verification has been conducted by the law, leaving potentially sensitive information at risk for hackers. It seems nearly every week that some such leak makes headlines, such as when the app Tea was recently breached, resulting in access to the IDs and other sensitive information provided of millions of its users.
The Current Policy Landscape of Age Verification
The Texas law that was upheld by the Supreme Court has some unique features; however, it is not the only attempt at a state or federal level to create age verification requirements for either the use of social media or apps more generally or for access to specific types of content. Free Speech Coalition v. Paxton, however, will not be the end of the conversation around age-verification online in the courts, nor will it be the end of the debate in the legislature at either a state or federal level.
Many laws under consideration currently are far broader than just sexually explicit content and would apply more generally to access to the internet, app downloads, or social media. I have discussed the potential speech and privacy issues with such laws in prior work. As will be discussed later in this piece, many of these laws are currently facing litigation on First Amendment grounds. Still, it is important to understand the full scope of the policy conversation occurring on this issue at the state and federal levels. While often with the best of intentions, such laws raise significant privacy and speech concerns for adults and minors and would also raise barriers to new platforms and disproportionately impact certain communities, like refugees, political dissidents, or those who identify as part of the LGBTQ community.
The most common of these types of laws are the ones like Texas’s that target adult sexual content. To date, 25 states have enacted such laws, while another two are actively considering similar legislation. Following the recent Supreme Court ruling, these laws are likely to be found constitutional under intermediate scrutiny.
But policy action has not been limited to only sexually explicit or obscene content. Over 40 states have considered some kind of youth online safety-focused legislation since 2024. At least four states, including Vermont, Maryland, California, and Nebraska, have considered or passed some form of age-appropriate design codes in 2025. Four states, including Arkansas, South Dakota, Nebraska, and Wyoming, considered or passed broader age-verification requirements that would apply to more than just sexually explicit content. At a federal level, legislation like the Kids Online Safety Act (KOSA) might not explicitly mandate age-verification, but compliance with the law’s provisions would almost certainly result in de facto age-gating for many popular general-purpose websites and extend beyond just popular social media platforms like Instagram or TikTok.
Other proposals at both a state and federal level have sought to impose age-verification not on the platforms themselves but on app stores. But regardless of where the age verification or similar requirements occur, they still impose significant speech and privacy consequences for all online users including the children and teens they are aimed at protecting.
There is a potentially better solution out there. That is to focus on education rather than regulation. Such an approach allows parents and teens to make better decisions to use technology for its benefits while hopefully minimizing the risk. In this regard, over 14 states have considered legislation that would update media literacy standards, add social media literacy to the curriculum, or establish a task force that could help facilitate important conversations regarding technology. This approach can provide students with the tools that will benefit them after their teenage years and encourage them to use technology positively, without presupposing that the reasons teens turn to the internet are always negative.
Does FSC v. Paxton Change the Litigation Landscape?
Several cases are pending in federal courts challenging various age verification or youth online safety regulations regarding their potential impact on speech. These cases vary in their current procedural posture, ranging from recently merely filed to pending potential emergency action at the Supreme Court.
Before the recent decision, several courts had already issued preliminary injunctions or found such laws unconstitutional due to the potential impact on First Amendment rights. However, recently, the Fifth Circuit did not issue a preliminary injunction regarding a Mississippi age-verification law for social media and even potentially other internet services.
Currently, emergency action is pending at the Supreme Court to seek to prevent the enforcement of the law pending the conclusion of litigation. If the Court does not grant the injunction, the consequences of such a law, as with other areas of internet policy, would impact not only speech within Mississippi but also out-of-state speakers as well. At a minimum, such laws limit out-of-state speakers from communicating with Mississippians, and in many cases, platforms may enforce required changes more generally either to better ensure compliance or due to the cost of engaging in such changes. In some cases, particularly smaller platforms, the cost of compliance may not be worth it. As a result, you could see some platforms choose to leave a state instead of removing access to certain tools for speech from Mississippians, similar to how some websites found the cost of European data privacy regulations not worth the size of their market there.
As lower courts consider these cases, they should be cautious not to interpret FSC v. Paxton too broadly. Justice Thomas’s decision is not grounded in arguments that would overturn existing precedent around age verification, such as Ashcroft v. ACLU, nor should it be seen as changing the Court’s interpretation of the state interest in protecting children from less clearly defined or proven theories of harm under Brown v. Entertainment Merchants Association. As such, while it is likely that laws that narrowly target obscenity or sexually explicit content for age verification will be subject to the less stringent standard of intermediate scrutiny, the ongoing litigation around more expansive age verification should not be subject to the lesser standard established for sexually explicit content.
Conclusion
While FSC v. Paxton may raise concerns, particularly given the broader definitions in the Texas law, the Court did attempt to apply it only to the context of a specific type of content that has been allowed to require verification in the offline world. Proponents will see this as a win, but the Court did not provide a green light to age verification more generally in its decision. Policymakers should carefully consider the tradeoffs and consequences for speech and privacy of users of all ages and the existing precedents around age verification more generally, which means broader laws will likely be found unconstitutional. Beyond the courts, the recent enforcement date of the UK’s Online Safety Act and accompanying actions by companies have shown that these laws can have a significant impact and unintended consequences for a wide range of content.