Supreme Court upholds Texas age-verification law for adult content

Today, the Supreme Court has decided to upload Texas’s age-verification law for porn sites. The decision is 6-3, with Justices Kagan, Sotomayor, and Jackson dissenting.

Around a third of states in the U.S. have enacted such laws. They typically require sites with more than a third of explicit content to require viewers to submit some verification of age, such as a facial recognition scan or a government ID. In January, SCOTUS heard a case about the constitutionality of Texas’s law in particular, Free Speech Coalition v. Paxton.

What did SCOTUS rule on age verification?

SCOTUS had to decide what standard to use to review the law: strict scrutiny (the most rigorous review) or rational basis (which is less strict).

But the majority of justices decided that the Texas law is subject to intermediate scrutiny, which is in the middle. The opinion, delivered by Justice Clarence Thomas, states that the law “has only an incidental effect on protected speech, and is therefore subject to intermediate scrutiny.”

The opinion goes on to state, “[A]dults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court’s precedents.”

Writing the dissent, Justice Elena Kagan argues the opposite. “Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so. That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content — which demands strict scrutiny.”

Reactions to the SCOTUS age-verfication ruling

“My mind went to the nightmare of actually enforcing this law,” said Ricci Levy, president and CEO of the sexual freedom nonprofit Woodhull Freedom Foundation. Levy asked who would determine which sites fall under this law — and suspected sites will err on the side of enacting age-verification rather than risk violating it.

Legal counsel for Woodhull, Lawrence G. Walters, asked, “How do you possibly determine whether a platform like Reddit has 33.3 percent material that is potentially obscene as to minors?” That itself, he said, is a difficult determination, “and the default will likely be additional censorship.”

Adult industry attorney Corey D. Silverstein told Mashable that he agrees with the dissenting justices, and that based on past First Amendment cases, strict scrutiny should apply. 2004’s Ashcroft v. ACLU, also about whether an act to prevent children from accessing online porn violated the First Amendment, is one such case. (In Ashcroft, the court ruled that it did.)

Silverstein said that if a law impedes a person’s free speech rights, it is supposed to use the least restrictive means to achieve a compelling interest. That’s what strict scrutiny is, he said.

“I don’t understand how they got outside of strict scrutiny,” he said. The intermediate scrutiny standard is rare, he continued, but it was also used to uphold the TikTok ban earlier this year. (President Trump has since delayed the TikTok ban more than once.)

Walters told Mashable the same. The majority opinion tries to justify the ruling by claiming the internet has changed and more people, including children, have ready access.

“But this law is a content-based restriction on speech. It burdens adult access to speech, and that falls — or has fallen — squarely in the category that requires strict scrutiny,” he said.

Now, this ruling opens the door for the government to be able to create other burdens on adults attempting to access various types of speech, Walters said.

The outward reason for these laws is to protect children. As Texas Attorney General Ken Paxton (the Paxton in Paxton) posted on X, “This is a major victory for children, parents, and the ability of states to protect minors from the damaging effects of online pornography.”

“Companies have no right to expose children to pornography and must institute reasonable age verification measures. I will continue to enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials,” he continued.

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“They can sit here and people are blue in the face that this is about protecting children,” Silverstein told Mashable, “but I’m not buying what they’re selling.”

“If that were, in fact, the case…when they [wrote] these statutes, they would have found a way to make it far less burdensome,” he explained. (Also, in an early study out of NYU, results suggested that age verification doesn’t work because minors can use VPNs to circumvent the age checks, or go on sites that aren’t complying with the laws.)

Walters pointed to a brief filed by the International Centre for Missing & Exploited Children (ICMEC) last year, in opposition to the Texas law. Among other arguments, ICMEC stated that the law could harm children because it makes them more vulnerable to exploitation on foreign-held sites that aren’t subject to the law, and that children can just use a VPN to access explicit material.

Silverstein, like other critics of age verification Mashable spoke to, is in favor of device-level filters instead.

Age verification, free speech, and Project 2025

Since before the 2024 election, free speech advocates and those in the adult industry feared what would happen if Project 2025 (the conservative policy blueprint for President Trump’s second term) was set into motion. Project 2025 calls for an outright ban on pornography and the imprisonment of its creators. In January, Oklahoma Senator Dusty Deevers introduced a bill to do just that. Last month, Republicans introduced another bill that would effectively ban porn.

One of Project 2025’s writers, Russell Vought (who now leads the Office of Management and Budget) was caught on secret recording last year calling age verification a “back door” to banning porn.

Today’s decision will change the adult entertainment industry, Silverstein said. “Age verification in the United States is not going anywhere, and so that’s going to be the new norm,” he said, “and there are many people that will now not have the ability to view content that is constitutionally protected” if they don’t want to submit their ID or other identifying information to a third-party.

The decision extends beyond explicit content, as well. Both Silverstein and Aaron Mackey, the Electronic Frontier Foundation‘s free speech and transparency litigation director, called SCOTUS’s decision a blow to free speech rights. It will also, Mackey said, endanger people’s online privacy.

“Today’s decision in Free Speech Coalition v. Paxton is a direct blow to the free speech rights of adults,” Mackey wrote in a statement emailed to Mashable. “This ruling allows states to enact onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize their data security and privacy. These are real and immense burdens on adults, and the Court was wrong to ignore them in upholding Texas’ law.”

Pornography has historically been the “canary in the coal mine” for free expression, Alison Boden, executive director of the adult industry trade organization, Free Speech Coalition, said in a statement shared on Bluesky.

“The government should not have the right to demand that we sacrifice our privacy and security to use the internet. This law has failed to keep minors away from sexual content yet continues to have a massive chilling effect on adults,” Boden continued. “The outcome is disastrous for Texans and for anyone who cares about freedom of speech and privacy online.”

UPDATE: Jun. 27, 2025, 4:00 p.m. EDT This article has been updated with expert commentary.