Supreme Court May Decide if Government Can Age-Gate Sexual Expression Online

WASHINGTON – The Supreme Court today heard arguments in Free Speech Coalition v. Paxton, a challenge to H.B. 1181, a Texas law that requires people to undergo an invasive age verification process before accessing sexual content online.

Represented by Quinn Emanuel, the American Civil Liberties Union, and the ACLU of Texas, the Free Speech Coalition argued that adults have a First Amendment right to look for and access information online, including sexual content. The plaintiffs argued the government cannot burden adult access to sexual speech in an effort to protect kids, whether at drive-in movies, on cable TV, or via the internet.

“Efforts to childproof the internet not only hurt everyone’s ability to access information, but often give the government far too much leeway to go after speech it doesn’t like — all while failing to actually protect children,” said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “Pornography is historically the canary in the coal mine when it comes to censorship. Allowing the government to restrict access to sexual content will inevitably lead to more censorship and a more restricted internet for everyone.”

Texas’ H.B. 1181 regulates any website that publishes content one third or more of which is “harmful to minors” — a broad category that encompasses virtually any explicit content, from porn to sexual health materials to R-rated movies. The law forces people who visit those sites to prove they are over 18 via government-issued ID, like a driver’s license, digital ID (which Texas does not have), or transactional data, like records from mortgage, education, and employment entities.

“We are grateful for the opportunity to present our case and answer the justices’ questions,” said Derek Shaffer, partner at Quinn Emanuel Urquhart and Sullivan and counsel of record in the case. “We agree that states have a compelling interest in protecting children from harmful sexual content online, and we urge lawmakers to consider less restrictive, more effective solutions than the approach taken by Texas. We hope the Court will confirm the need to apply strict scrutiny to laws that burden and chill adults’ exercise of their First Amendment rights, and we look forward to the Court’s decision.”

As the plaintiffs explained in court today, forcing people to identify themselves in order to access information online compromises adults’ rights to privacy and free speech without preventing children from accessing porn. That’s because H.B. 1181 does not apply to sites where minors are most likely to be exposed to sexual content, including search engines and most social media platforms.

”We can protect children online without censoring the internet for adults,” said Alison Boden, executive director of the Free Speech Coalition. “There are smarter, more effective solutions to keeping kids from seeing adult materials that don’t violate the First Amendment right of consumers to go online anonymously.”

Since Texas passed H.B. 1181 in 2023, nearly 20 states have enacted similar age verification laws. In states where these laws have passed, the vast majority of adult sites have left the state, potentially increasing the use of VPNs, as well as the popularity of less-regulated sites with sexual content that don't comply with the letter of the law.

“By restricting entire websites where only a third of content is deemed harmful to minors, Texas is censoring constitutionally protected speech that we all have a right to access. The government cannot dictate what content we access online without meeting strict scrutiny,” said Brian Klosterboer, senior staff attorney with the ACLU of Texas.

Free Speech Coalition v. Paxton is part of the ACLU's Joan and Irwin Jacobs Supreme Court Docket. A decision in the case is expected by early summer 2025.