I’m Going to Need to See Some ID: Free Speech Coalition v. Paxton and Online Age Verification

Kyle Korte

In Free Speech Coalition, Inc. v. Paxton, the Supreme Court considered a First Amendment challenge to a Texas statute that requires websites hosting material that is obscene to minors to verify visitors’ ages before granting access. The Free Speech Coalition (“FSC”), a trade association for the adult entertainment industry, along with a group of companies that operate pornographic websites and an adult entertainer, alleged that the statute unconstitutionally burdened adults’ First Amendment rights by requiring age verification to access material that, while obscene to minors, is not obscene to adults and is therefore protected speech. The Court held that the statute’s burden on adults’ access was only incidental and that, under intermediate scrutiny, implementing age verification is “appropriately tailored” to advance Texas’s “important interest in shielding children from sexually explicit content.” The Court erred in its decision because the statute is a direct burden on adults’ free speech rights and thus requires strict scrutiny. In deciding to apply intermediate scrutiny, the Court ignored the nuances of age verification online, the significant data privacy issues it poses, and the substantial burden on the protected speech of millions of adults. By applying intermediate scrutiny, the Court permits broad content-based restrictions while affording high deference to legislatures that puts adults’ access to protected speech, beyond access to pornography, at risk.