606 U.S. 461
SCOTUS2025Background:
- In 2023 Texas enacted H.B. 1181 requiring commercial websites with more than one-third "sexual material harmful to minors" to verify users are 18+ using government ID or transactional data; failure to comply exposes sites to injunctions and civil penalties (up to $10,000/day and extra penalties if minors access material).
- Petitioners (pornography trade association, websites, performer) sued the Texas Attorney General seeking a facial injunction under the First Amendment, arguing the law impermissibly burdens adults’ right to access protected sexual expression.
- The district court granted a preliminary injunction applying strict scrutiny; the Fifth Circuit vacated the injunction and applied rational-basis review, viewing the law as regulation of distribution to minors.
- The Supreme Court (majority opinion by Justice Thomas) held intermediate scrutiny applies because the statute regulates access to material obscene to minors and only incidentally burdens adults’ protected access; the Court upheld H.B. 1181 as sufficiently tailored and affirmed the Fifth Circuit.
- Justice Kagan (joined by Justices Sotomayor and Jackson) dissented, arguing strict scrutiny should govern because the law is a content-based burden on speech protected for adults and prior First Amendment precedents require the least-restrictive-means test.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable standard of scrutiny for H.B. 1181 | Strict scrutiny — content-based restriction on speech adults may lawfully receive | Rational-basis — law targets unprotected speech (obscene to minors) and is within State power | Intermediate scrutiny — age verification incidentally burdens adult protected speech; State power to protect minors includes age verification |
| Does age‑verification directly regulate adults’ protected speech? | Yes — verification requirement burdens adults’ right to access protected material | No — statute targets minors’ access; adults have no right to avoid verification | Burden on adults is incidental; adults have right to access but not a right to avoid age verification |
| Does H.B. 1181 satisfy heightened review (tailoring)? | Not narrowly tailored; less‑restrictive alternatives exist (parental filters, ISP-level controls, search/social platform regulation) | Tailored — advances important interest in shielding children; permitted verification methods are established and practical | Survives intermediate scrutiny: advances important interest and does not substantially burden more speech than necessary |
| Are prior decisions (Reno, Ashcroft/COPA, Sable, Playboy) controlling? | Those precedents require strict scrutiny for online regulations limiting adult access | Those cases addressed bans or effectively suppressed adult-to-adult speech and are distinguishable | Distinguished them: prior cases involved effective bans or illusory defenses; H.B. 1181 imposes a verification burden, not an outright ban |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based regulations are presumptively unconstitutional)
- Turner Broadcasting Sys. v. FCC, 520 U.S. 180 (intermediate scrutiny for regulations that incidentally burden speech; test for tailoring)
- Miller v. California, 413 U.S. 15 (definition of obscenity)
- Ginsberg v. New York, 390 U.S. 629 (States may bar minors from material obscene to minors; age verification in enforcement)
- Butler v. Michigan, 352 U.S. 380 (States may not ban material for adults that is merely inappropriate for children)
- Reno v. American Civil Liberties Union, 521 U.S. 844 (CDA struck down: regulation effectively suppressed adult speech online)
- Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (COPA: content‑based online restriction subjected to strict scrutiny)
- Sable Communications v. FCC, 492 U.S. 115 (strict scrutiny for restrictions on indecent but protected speech)
- United States v. Playboy Entertainment Group, 529 U.S. 803 (content-based burdens on protected speech require strict scrutiny)
- United States v. O'Brien, 391 U.S. 367 (intermediate scrutiny for laws regulating noncommunicative conduct that incidentally burdens expression)
- United States v. Stevens, 559 U.S. 460 (historic categories of unprotected speech and limits of First Amendment protection)