At issue is Texas’s 2023 law, House Bill 1181, which requires websites offering sexually explicit material to implement “reasonable age verification methods” to confirm users are at least 18. These methods can include submitting digital identification or using third-party verification systems. The law also mandates that websites display warnings labeling their content harmful to health.

With more than a dozen states enacting similar laws, the outcome of the case, Free Speech Coalition v. Paxton, could pave the way for even broader adoption of such measures across the country.

A Test of Precedent

The case could hinge on the Supreme Court’s 1997 decision in Reno v. American Civil Liberties Union, which held that the government cannot protect minors by broadly suppressing speech directed at adults when “less restrictive alternatives” are available.

In Reno, the justices unanimously struck down online content restrictions, ruling that such laws must meet strict scrutiny — the highest level of judicial review. Under this standard, the government must prove that a law is narrowly tailored to achieve a compelling interest without overly restricting lawful speech.

A federal judge applied this precedent in 2023 to strike down Texas’s age verification law, arguing it would “allow the government to peer into the most intimate and personal aspects of people’s lives.”

However, the 5th U.S. Circuit Court of Appeals reviewed the law under a lower standard, rational basis review, and upheld it, finding that Texas had a legitimate interest in protecting children from explicit material.

The current Supreme Court is much different from the bench that was in place in 1997, and at least five justices on the current bench voted to overturn Roe v. Wade three years ago and allow states to set gestational limits on abortion.

The question will be left up to the majority of Republican-appointed justices, who could question why an ID requirement for viewing pornographic content is any different than showing an ID to purchase a pornographic magazine at the store.

Supporters of the Law: Protecting Children’s Welfare

Texas contends the law addresses a public health crisis stemming from children’s easy access to pornography. The state has argued that such exposure harms minors’ emotional and sexual development, citing studies linking pornography consumption to increased risk behaviors and long-term psychological impacts.

The American Principles Project, a nonprofit organization advocating child protection, will rally outside the Supreme Court on Wednesday to support the law.

“Smartphones and other technological advances have fundamentally transformed the pornography industry — threatening the well-being of children like never before,” APP says in a statement on its webpage. “According to one report, the average child will encounter pornography before their 12th birthday. This is unconscionable, and it’s also technically illegal.”

Meanwhile, Texas has dismissed concerns about adult access, asserting that any restrictions are minimal and do not constitute a significant burden under the First Amendment.

“A restriction on videos of ‘teen bondage gangbang[s]’ does not invade the area of freedom of expression constitutionally secured to minors,” Texas argued in its brief.

Critics of the Law: Chilling Free Speech

Opponents of the law argue that it imposes unconstitutional burdens on adult access to lawful material and jeopardizes user privacy.

“Texas’ age verification law robs internet users of anonymity, exposes them to privacy and security risks, and blocks some adults entirely from accessing sexual content that’s protected under the First Amendment,” Lisa Femia, staff attorney for the Electronic Frontier Foundation, said in a statement to the Washington Examiner.

Other opponents of the law have highlighted that there are less restrictive remedies that can be applied to children’s devices, such as built-in parental controls, to protect them from viewing online pornography.

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In September, the Cato Institute filed an amicus brief at the Supreme Court in favor of reversing the 5th Circuit decision, writing in part that parents can take measures in their own lives “such as content filtering and device-level restrictions” for their children’s technological devices.

“These methods place power in the hands of parents and avoid putting a serious chill on adults’ access to lawful content,” reads a blog post about the brief.