Free Speech Coalition, Inc. v. Paxton

The Supreme Court has long recognized that the government’s regulation of sexual expression must satisfy strict scrutiny if it imposes burdens on adults’ access to protected speech, even if the law was meant to protect children. In prior cases brought by the ACLU, including Reno v. ACLU, 521 U.S. 844 (1997) and Ashcroft v. ACLU, 542 U.S. 656 (2004), the Supreme Court struck down federal laws that effectively required users to verify their ages to access protected content for that reason.

Nevertheless, a growing number of states have recently passed laws requiring websites that publish sexual material deemed “harmful to minors” to verify their users’ age before they can access anything on the site. In 2023, Texas joined that group by passing HB 1181 (“the Act”).

Pursuant to the Act, websites on which one-third or more of the content is “harmful to minors” must verify the age of all users. The Act defines “sexual material harmful to minors” as material that is obscene from the perspective of an average person considering the material’s effect on minors. That is inherently vague and, as a practical matter, it covers virtually all salacious content—for example, sex-education videos and R-rated movies.

The Act also requires covered sites to prominently publish “sexual materials health warnings” written by the government, including the statement that “[p]ornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.” Id.
§ 129B.004(1).

The age verification requirement restricts adults’ access, effectively requiring them to identify themselves to pass through the age-gate. It also robs people of anonymity, and threatens to bar individuals—for example, those who lack government identification or whose age is mis-identified by the relevant technology—from accessing the websites altogether.

Before the Act took effect, a group of impacted plaintiffs, including the Free Speech Coalition, creators and distributors of adult content, and a performer whose content is featured on several adult websites, filed suit on First Amendment grounds in federal district court. They argue that the age-verification requirement impermissibly burdens users and that the health warnings impermissibly compel speech.

The district court agreed, issuing a preliminary injunction against the Act. However, a divided Fifth Circuit panel vacated that injunction with respect to the age verification provision, reasoning that the burden on adults’ First Amendment rights only has to have some rational basis–not face strict scrutiny–because the aim is to protect children.

On April 12, 2024, the plaintiffs, represented by the ACLU and the law firm Quinn Emanuel Urquhart & Sullivan, asked the U.S. Supreme Court to take the case in order to correct the Fifth Circuit’s error and resolve a circuit split created by the opinion. Unless the Supreme Court intervenes, this decision will effectively reverse decades of precedent protecting the free speech rights of adults, including several seminal online speech cases brought by the ACLU.