Supreme Court of the United States Holds Texas Age-Verification Law for Sexually Explicit Websites Is Subject to, and Survives, Intermediate Scrutiny

The decision

On June 27, 2025, the Supreme Court of the United States affirmed a judgment of the Fifth Circuit that had vacated a preliminary injunction against H.B. 1181, a 2023 Texas law requiring certain commercial websites that publish sexually explicit content to verify that their visitors are 18 or older. In an opinion by Justice Thomas for a six-Justice majority, the Court held that the statute “triggers only intermediate scrutiny” under the First Amendment, rather than the strict scrutiny the challengers sought or the rational-basis review Texas urged, and that it survives that standard.

The case reached the Court on review of a preliminary injunction. The opinion states that the Court granted certiorari “to determine whether H. B. 1181’s age-verification requirement is likely constitutional on its face,” and framed the question as “whether these burdens likely render H. B. 1181 unconstitutional under the Free Speech Clause of the First Amendment. We hold that they do not.”

Background

According to the opinion, Texas prohibits distributing sexually explicit content to children under Penal Code §43.24(b), but that prohibition “has proved challenging to enforce against online content.” In 2023 the Legislature enacted H.B. 1181, codified in Chapter 129B of the Civil Practice and Remedies Code. The statute applies to any commercial entity that knowingly and intentionally publishes or distributes material on a website more than one-third of which is “sexual material harmful to minors,” a term the statute defines by adapting the three-part obscenity test to minors.

A covered entity must use “reasonable age verification methods” to verify that a visitor is 18 or older, through a commercial age-verification system using “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” Verification may be performed by the entity or a third-party service. For knowing violations, the Texas attorney general may sue to enjoin the violation and recover a civil penalty of up to $10,000 per day of noncompliance, plus up to $250,000 if minors access covered material as a result. The Court noted that at least 21 other States have enacted materially similar online requirements.

A trade association for the pornography industry, a group of companies that operate pornographic websites, and a pornography performer sued the attorney general, alleging that the statute is facially unconstitutional under the Free Speech Clause because it impermissibly hinders adults’ access to protected speech. The District Court applied strict scrutiny and granted a preliminary injunction, finding that Texas had not shown the law to be narrowly tailored and the least restrictive means available. The Fifth Circuit vacated the injunction, applying rational-basis review on the ground that the law regulates distribution to minors of material obscene for minors; Judge Higginbotham dissented in relevant part. The Supreme Court denied a stay and then granted certiorari.

The court’s reasoning

The governing framework

The Court began with three tiers of review: content-based laws targeting protected speech receive strict scrutiny, laws that only incidentally burden protected speech receive intermediate scrutiny, and laws restricting unprotected speech such as obscenity receive rational-basis review. Reviewing English and early American obscenity law and the Court’s precedents, the majority concluded that States have two distinct powers: to proscribe speech obscene to the public at large, and to prevent children from accessing speech obscene to children. Under Ginsberg v. New York, a State may bar minors from material obscene from a minor’s perspective; under Butler v. Michigan, it may not limit adults to what is fit for children.

Why the burden on adults is incidental

Rejecting both sides’ positions, the Court wrote, “We think neither party has it right.” It reasoned that because the First Amendment leaves undisturbed the States’ power to prevent minors from accessing speech obscene to them, “That power necessarily includes the power to require proof of age before an individual can access such speech.” Citing Story, Madison and Cooley on the principle that a reserved power carries with it “the ordinary and appropriate means” of exercising it, the majority listed age-verification requirements for alcohol, tobacco, tattoos, driver’s licenses, handgun licenses, voter registration and marriage, and observed that most States require age verification for in-person purchases of sexual material. It noted petitioners’ concession at oral argument that such in-person requirements are “traditional” and “almost surely” constitutional.

Turning to the statute, the Court found that it reaches only speech obscene to minors and does not ban adults from that material. Adults retain a right to access it, and age verification burdens that right. “But, adults have no First Amendment right to avoid age verification, and the statute can readily be understood as an effort to restrict minors’ access.” The Court analogized to United States v. O’Brien, in which a prohibition on destroying draft cards was held to place only an incidental burden on expression. In a footnote, the Court declined to resolve disputes over whether the statute requires material to be obscene to all minors or only to some, and whether it requires verification for a website’s entire content; applying United States v. Hansen, it stated that petitioners had not shown the statute’s unconstitutional applications to be substantially disproportionate to its lawful sweep.

Rejecting strict scrutiny

The majority described strict scrutiny as “the most demanding test known to constitutional law” and said the Court has held only once, in a national-security case, that a law triggered but satisfied it under the First Amendment. It reasoned that applying strict scrutiny would call into question all age-verification requirements, including longstanding in-person ones, and that “Strict scrutiny therefore cannot apply to laws, such as in-person age-verification requirements, which are traditional, widespread, and not thought to raise a significant First Amendment issue.”

Addressing Sable Communications, Playboy, Reno and Ashcroft II, the Court concluded that each involved a law banning both adults and minors from speech that was at most obscene only to minors, and that “this Court has never before considered whether lesser burdens aimed at distinguishing children from adults directly regulate any free speech right of adults.” It distinguished the affirmative-defense structure of the federal statutes from H.B. 1181, which makes lack of verification an element the State must prove, and noted that Reno and Ashcroft II were decided when the internet was “still more of a prototype than a finished product.” The Court added: “But respect for past judgments also means respecting their limits.”

Rejecting rational-basis review

The Court also rejected Texas’s position that only rational-basis review applies, reasoning that this would fail to account for the incidental burden on adults. It wrote that “Intermediate scrutiny, which is deferential but not toothless, plays an important role in ensuring that legislatures do not use ostensibly legitimate purposes to disguise efforts to suppress fundamental rights,” and pointed to Texas’s concession that it could not require an “affidavit” from a “biological parent” as proof of age.

Applying intermediate scrutiny

Under Turner Broadcasting System, Inc. v. FCC, the Court asked whether the law advances important governmental interests unrelated to suppressing speech and does not burden substantially more speech than necessary. It found Texas’s interest in shielding children from sexual content to be important, even “compelling,” and concluded that H.B. 1181 “simply adapts this traditional approach to the digital age.” The permitted methods—government identification and transactional data—were described as established methods already used by other age-restricted industries and by many pornographic websites.

The Court rejected petitioners’ counterarguments in turn. It reasoned that less restrictive alternatives such as content filtering do not invalidate a law under intermediate scrutiny, citing Ward v. Rock Against Racism; that the statute’s treatment of search engines and social-media sites was permissible because there is no freestanding underinclusiveness limitation, citing TikTok Inc. v. Garland; and that privacy and stigma concerns did not exempt the industry from otherwise valid regulation. In a footnote, the Court declined to decide whether the statute permits biometric methods such as face scans. It concluded: “It is therefore subject only to intermediate scrutiny, which it readily survives.”

Separate opinions

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. She agreed that States have a compelling interest in shielding children from the speech at issue and that children have no right to view it, but argued that under ordinary First Amendment doctrine and four prior decisions, a content-based burden on speech protected for adults requires strict scrutiny. “Four times, one result,” she wrote of Sable, Reno, Playboy and Ashcroft.

The dissent characterized the statute as a direct rather than incidental regulation: “Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so.” It contended that O’Brien and its progeny involved regulations of conduct that swept in expression, and that the majority’s ban/burden distinction was contrary to precedent: “Much more important, the distinction between bans and burdens makes no difference to the level of scrutiny.” Justice Kagan wrote that strict scrutiny “need not be a death sentence” and that “A law like H. B. 1181 might well pass the strict-scrutiny test, hard as it usually is to do so.” She concluded, “I would demand Texas show more,” to ensure the State has not restricted adult speech more than necessary.

Status

The Court stated: “The judgment of the Court of Appeals for the Fifth Circuit is affirmed.” The Fifth Circuit’s judgment had vacated the District Court’s preliminary injunction. The opinion contains no remand instruction and does not describe what further proceedings, if any, will follow in the lower courts. The Court did not resolve several disputes about the statute’s construction, including the scope of the “sexual material harmful to minors” definition and whether biometric verification is permitted.

The decision was widely reported on the day it issued, including by NPR, The Texas Tribune, CBS News, CNN, ABC News and National Review, with Route Fifty following on June 30.