From “Strict” to “Intermediate”:
Free Speech Coalition, Inc. v. Paxton and the New Standard for Online Age-Verification Laws

1. Introduction

In Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (U.S. June 27, 2025), the Supreme Court resolved a question that has dogged federal courts ever since the Internet became the predominant means of distributing sexually explicit content: What level of First Amendment scrutiny applies when a State requires commercial websites to verify a user’s age before allowing access to material that is obscene for minors but constitutionally protected for adults? Writing for a six-Justice majority, Justice Thomas announced a brand-new rule: such laws are subject to intermediate scrutiny, not the “almost always fatal” strict scrutiny that had governed comparable disputes for three decades. The case grew out of Texas House Bill 1181, which requires covered websites to use government ID or commercially reasonable transactional data to be sure that visitors are 18 or older. Pornography producers and trade groups sought to enjoin the statute, arguing that it chilled adult access to protected expression. The Court of Appeals for the Fifth Circuit upheld Texas’s law under rational-basis review; the Supreme Court took a middle path, applying intermediate scrutiny and still affirming the statute’s validity.

2. Summary of the Judgment

The Court held, 6-3, that:

1. Speech that is “obscene to minors” occupies a hybrid zone—unprotected as to minors, protected as to adults.
2. When a State merely requires age verification to segregate minors from such content, the burden on adults is “incidental” and therefore triggers intermediate, not strict, scrutiny.
3. Texas’s system satisfies intermediate scrutiny because it furthers the important governmental interest of protecting children and does not burden substantially more speech than necessary.

Justice Thomas authored the opinion. Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett joined. Justice Kagan dissented, joined by Justices Sotomayor and Jackson, insisting that the statute is content-based and must survive strict scrutiny—just as similar federal schemes failed in Reno (1997) and Ashcroft II (2004).

3. Analysis

3.1 Precedents Cited and Their Deployment

• Ginsberg v. New York, 390 U.S. 629 (1968).
  Recognised a State’s power to prohibit sales of material that is obscene for minors. The majority relies on Ginsberg to ground a historical “power to age-verify.” The dissent notes that Ginsberg involved only in-person sales and never addressed online verification burdens on adults.
• Butler v. Michigan, 352 U.S. 380 (1957).
  Struck down a law that limited adult access to material “obscene for youth.” Thomas treats Butler as showing that States must not ban adult access, but may impose lesser burdens like ID checks.
• United States v. O’Brien, 391 U.S. 367 (1968).
  The draft-card burning case supplies the analytical move from “direct” to “incidental” burdens. The majority analogises age verification (conduct) to possession of a draft card (conduct), subject to intermediate scrutiny. The dissent says this is a category error because the statute at issue regulates speech, not non-communicative conduct.
• Reno v. ACLU, 521 U.S. 844 (1997);
  Ashcroft v. ACLU (Ashcroft II), 542 U.S. 656 (2004);
  Sable Communications, 492 U.S. 115 (1989);
  Playboy Entertainment Group, 529 U.S. 803 (2000).
  In all four, the Court applied strict scrutiny to government efforts to shield minors from sexual content. The majority distinguishes them as “outright bans,” or as involving broader categories such as “indecency.” The dissent retorts that three of the four limited access rather than banned speech, and that the strict-scrutiny rule was never contingent on total bans.

3.2 Core Legal Reasoning

1. A Hierarchy of Speech Categories
   The majority restates the tripartite framework: fully protected speech (strict scrutiny for content-based laws); unprotected speech (rational-basis review); and speech subject to only incidental burdens (intermediate scrutiny). It places “material obscene to minors” in a “partly protected” bucket—States may deny it to minors, but adults retain the right to read or watch. Thus, when a State designs a mechanism that does not ban adult access, the adult burden is merely incidental.
2. The “Ordinary and Appropriate Means” Theory
   Drawing on Justice Story and The Federalist No. 44, the Court says that constitutional powers include the “ordinary and appropriate means” to enforce them. Because a State may keep pornography from kids, it may also implement the “ordinary” step of proving age.
3. The Omission of Least-Restrictive-Means Analysis
   Under intermediate scrutiny, Texas need not prove no better option exists; it must merely show that H.B. 1181 “does not burden substantially more speech than necessary.” The Court finds that (i) Texans must show ID for many age-gated activities; (ii) online age gating mirrors brick-and-mortar practices; and (iii) verification can be outsourced to third-party providers, limiting privacy risks.
4. Reinterpretation of Internet Precedent
   The majority recasts Reno and Ashcroft II as concerned with technological feasibility in the 1990s and early 2000s. It emphasises changed facts: today’s biometric and data-broker tools, widespread smartphone use, and growth of age-gating in other online sectors (gambling, e-commerce).

3.3 Impact Assessment

• Immediate State Legislation
  Twenty-one States already have age-verification statutes. Those enjoined by lower courts (e.g., Arkansas, Utah, Virginia) now stand on firmer footing, and new bills are likely nationwide.
• Shift in Free-Speech Litigation Strategy
  Plaintiffs challenging age-gating must now meet the intermediate-scrutiny standard. The hurdle of showing narrow tailoring is lower for States; discovery battles will pivot to whether verification methods are overly burdensome or leak data.
• Ripple Beyond Sexual Content
  The reasoning may be extended to violent videogames, gambling apps, or social-media addiction laws aimed at minors. Legislatures could argue that any incidental adult burden in age-based restrictions should be judged under intermediate scrutiny.
• Data Privacy Tensions
  Requiring government IDs or transactional data raises privacy-law concerns (e.g., CCPA, GDPR). The Court’s assurance that industry “has every incentive” to protect data will be tested in future cybersecurity or breach suits.

4. Complex Concepts Simplified

Obscenity (Adult vs. Minor): Speech is “obscene” for adults only if it meets the three-part Miller test (prurient appeal, patent offensiveness, lack of serious value). States may broaden each prong when assessing material from a minor’s perspective, creating a category that is partly unprotected.

Strict vs. Intermediate vs. Rational-Basis Scrutiny:

• Strict: Government must use the least speech-restrictive means to serve a compelling interest. Laws rarely survive.
• Intermediate: Government must show an important interest and that the law does not burden substantially more speech than necessary. It need not select the absolute best alternative.
• Rational-Basis: Any conceivable legitimate interest suffices. Almost all laws survive.

Incidental vs. Direct Burden: A regulation directly burdens speech when it targets expression because of what it says. It is incidental when the law governs conduct and only accidentally affects speech. The Court newly classifies age-verification as incidental.

5. Conclusion

Free Speech Coalition v. Paxton resets the constitutional framework for online child-protection laws. The Court stakes out an intermediate path: Between a State’s compelling desire to shield children and an adult’s right to sexual expression lies a realm where age-verification requirements are permissible if sensibly crafted. The decision narrows the reach of Reno and Ashcroft II, signaling that the digital-age balance between protection and freedom will turn less on facial invalidation and more on pragmatic tailoring. Litigants must now focus on the details: cost, privacy safeguards, and proportionality. Legislatures, for their part, are empowered—but also cautioned—to adopt verification regimes that genuinely advance child welfare without needlessly encumbering adult speech. The Court leaves open tough questions about data security, biometric scanning, and the future scope of “incidental” burdens. Yet the central holding is clear: age-verification laws targeting material obscene to minors no longer face the near-fatal gauntlet of strict scrutiny; they stand or fall under the more forgiving, but still meaningful, lens of intermediate review.