Executive Summary

• In June, the Supreme Court upheld a Texas law requiring age verification for websites that host sexually explicit material, suggesting federal efforts to implement similar age verification mandates could survive future judicial scrutiny.
• Specifically, the Court held that minors did not have a constitutional right to access sexually explicit material and that the restriction on the constitutionally protected speech of adults was incidental to the regulation, resulting in the Court’s application of a less strict review standard.
• Nevertheless, courts may still be reluctant to uphold federal laws that regulate general-purpose websites or restrict access to content that minors have a constitutional right to view and share, meaning Congress shouldn’t dismiss these concerns as it considers kids safety legislation.

Introduction

In June, the Supreme Court upheld a Texas law requiring age verification for websites that host sexually explicit materials in the Free Speech Coalition v. Paxton case. The Texas law is part of a wider effort to enact legislation across the country designed to protect children online. As the momentum on the state level increases, it could open the door to a federal-level age verification law that would have been on murkier First Amendment grounds before the decision in Paxton.

The Texas law drew significant First Amendment scrutiny due to its impact on anonymous speech and the right of adults to view such content without verifying their identity. Despite the precedent protecting anonymous speech online, the Court ruled that the law was subject to a less strict First Amendment standard because it targeted only children visiting websites that host pornographic material, whereas the impact on adults’ speech rights was incidental. This decision was made on the premise that, while adults have First Amendment rights to access obscene material, they do not have First Amendment rights to avoid age verification.

The Court’s decision could have a significant impact on broader attempts to protect children online. More general kid safety bills such as the App Store Accountability App, the Kids Off Social Media Act, and the Kids Online Safety Act all raise similar First Amendment concerns and, with the Court’s decision, could now be on firmer legal grounds. Despite the similarities between these bills and the Texas law, however, the ruling in Paxton was narrowly held to the question of age verification for websites whose main purpose was hosting sexually explicit material that minors do not have a constitutional right to view, and as such, courts may still be reluctant to uphold federal laws that regulate general-purpose websites or restrict access to content that minors do have a constitutional right to view and share.

2023 Texas H.B. 1181 Act

Texas H.B. 1181 restricts access to sexual material harmful to minors on an internet website. The act requires all commercial entities whose sites are composed of more than one-third sexual material harmful to minors to use reasonable age verification methods to ensure that individual users are 18 or older. The users are allowed to verify their ages by providing digital identification or complying with commercial age-verification systems that collect physical information on the user including government-issued ID or reasonable transactional data (i.e. bank statements). The law also allows the entities to perform individuals’ verification themselves or through a third party, but prohibits them from retaining any identifying information. If the entities are found to store the identification after the information verification process, the companies could be held liable to individuals for damages, including court costs and reasonable attorney fees. The law does not, however, apply to bona fide news or public interest broadcasts, website videos, reports, or events and may not be interpreted to affect the rights of a news-gathering organization. Similarly, internet service providers (i.e., search engines or cloud service providers) are not held liable for simply providing access to or hosting sites with sexual material.

The law has been met with significant pushback from First Amendment advocates who argue that age verification would significantly chill adults’ access to content, violating free speech online. Initially, the law was barred by a federal district court from taking effect, but the Fifth Circuit Court of Appeals reversed the decision. Consequently, the case against the law was brought to the Supreme Court.

Free Speech Coalition v. Paxton Overview

In analyzing whether the law regulated free speech, and thus violated the First Amendment, the Supreme Court considered both the nature of the burden and the nature of the speech, finding that H.B. 1181 is subject to intermediate scrutiny. When dealing with cases that determine the constitutionality of a law, the Supreme Court will apply a level of scrutiny guiding the Court in its analysis of the law and its effects. At issue here is that the Court needed to decide whether strict or intermediate scrutiny applied to the review. In First Amendment cases, strict scrutiny applies when a law targets the content of speech rather than the time, place, or manner in which it’s delivered. This is the most rigid level of scrutiny for governments to satisfy, with the court presuming the law’s unconstitutionality. An intermediate level of scrutiny is employed in cases in which infringement on speech is content-neutral and the infringement on constitutional rights is incidental to the regulation.

Despite the concerns about individuals accessing specific types of constitutionally protected speech, the Court found that for minors, sexually explicit material is obscene and thus not constitutionally protected. Accepting that sexually explicit material is not protected for minors, the Court then found that restrictions on minors’ access to pornography have only an incidental impact on the speech rights of adults but do “not directly regulate the protected speech of adults,” as they simply require adults to verify their age to access the material.

Most at issue, the Court worried that if it held the law unconstitutional, it could make similar laws for in-person purchases unconstitutional. Under most circumstances, the First Amendment allows for age verification when dealing with age-based laws, including purchasing alcohol or firearms, acquiring a driver’s license, and engaging in or viewing obscenity. Therefore, because this law simply requires individuals to verify their age, the Court decided that it passed intermediate scrutiny, as 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.”

Finally, because the law was subject to intermediate scrutiny, the Court dismissed arguments that there were less restrictive means to limit children’s access to such material, or that requiring age verification would not actually prevent children from accessing materials. These arguments, which would have been a key factor in a strict scrutiny analysis, played little role here, as intermediate scrutiny does not require states to opt for less restrictive means or to ensure that the law covers all possible sources of obscenity.

Impacts for Broader Kids’ Safety Regulation

The decision in Free Speech Coalition v. Paxton could have a significant impact on federal efforts to pass kids’ safety legislation and will increase the likelihood that such legislation will survive judicial review. Moving forward, though, members should not discount the First Amendment concerns related to these bills.

First, there are a variety of efforts to limit minors’ access to potentially harmful social media and online applications. Some of these efforts, such as the App Store Accountability Act and the Kids Off Social Media Act, would require apps or app stores to verify the age of users and provide parental control tools for guardians or limit access to children depending on the specific content, much like Texas’ H.B. 1181. Unlike the Texas law, however, these bills would not just apply to pornographic websites, and the Court’s recent logic could create greater judicial deference for such restrictions. If so, a court could apply intermediate scrutiny for age-verification efforts, especially if a law that requires age verification for the viewing of certain materials online can be justified by proponents as merely banning children’s viewing of materials that are also not constitutionally protected in a physical medium.

For example, the Kids Off Social Media Act would require platforms to ban all minors under the age of 13, and doing so would necessarily require platforms to verify the age of all users. If a court finds that accessing social media is akin to accessing pornographic material and is therefore harmful to the child, intermediate scrutiny could apply even if a law forces adults to provide personal information to access the constitutionally protected speech.

Second, larger efforts to protect children online, such as the Kids Online Safety Act (KOSA), may stand on firmer legal grounds than previously thought, despite not directly requiring age verification. KOSA would impose a duty of care to protect minors online. In practice, this type of legislation would require platforms to verify user age, and as a result it could jeopardize the safety, privacy, and anonymity of adults using the websites or services by requiring them to submit their IDs to view the content. Because the impacts are incidental, however, a reviewing court could likewise apply intermediate scrutiny to First Amendment concerns.

Despite the decision in Paxton, however, there are still stark differences between the Texas law and other efforts to protect children online. Most notably, the court in Paxton found that the restricted online content wasn’t constitutionally protected because it was obscene for minors. Yet many of the laws requiring age verification or imposing duties on websites to protect children would impact a wide variety of constitutionally protected speech, even for minors, and regulation restricting access to such content would likely still draw strict scrutiny.

While it appears the Court may be more willing to apply intermediate scrutiny for kids’ safety legislation, intermediate scrutiny does not mean the government can restrict any speech in any manner it wants. Many of the laws would still fail intermediate scrutiny due to the vast amount of protected speech that would be affected, though improvements in age verification technology could mitigate these harms.

Conclusion

The Supreme Court’s decision to uphold Texas’ H.B. 1181 could have a significant impact on the constitutionality of broader efforts to protect children online. The decision, however, was narrowly applied to a law dealing with obscene material for children. As broader regulatory efforts impact a wider range of constitutionally protected speech, it is more likely that they will be found violative of the First Amendment. While the Supreme Court’s ruling may allow Congress to take action to protect children online, lawmakers should still fully consider the First Amendment implications of any legislation restricting access to speech online.