FSC v Paxton Made Bad Law, But It’s Not Carte Blanche for Age Verification

On June 27, the last day of the Supreme Court’s 2025 term, the Court handed down its decision in Free Speech Coalition v. Paxton (FSC v. Paxton), a case examining whether Texas could require age verification to access certain lawful speech. In a significant shift for the First Amendment generally and for laws restricting access to sexual content online specifically, the Court upheld the statute at issue, requiring online services that publish a certain amount of sexual content harmful to minors to verify that their users are over the age of 18. 

This decision contradicts decades of precedent and will endanger access to constitutionally protected speech for everyone online going forward. Even so, it is limited in important ways, and legislatures should not view it as carte blanche to impose age restrictions on access to speech online.

The Texas Law

Under the Texas law upheld by the Court, any commercial entity that knowingly and intentionally publishes or distributes “material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors” must institute an age verification method permitted by the bill to ensure those accessing their material are over the age of 18. The term “sexual material harmful to minors” is narrowly defined to include only speech that can be considered to be obscene for minors, a category of speech that minors do not have the constitutional right to access, though adults do. Permissible age verification methods include “digital identity” verification (which Texas does not have) and a commercial age verification system that uses either government-issued identification or “a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.”

FSC v. Paxton: The Bad, The Ugly, and the Way Forward

Until FSC v. Paxton, it was axiomatic that content-based laws — i.e., laws that single out certain constitutionally protected content for disfavored treatment — receive the most stringent review that a court could apply, a standard known as strict scrutiny. This reasoning applied to statutes like the Texas statute at issue, which required or incentivized age verification in order to access sexually explicit content that was protected under the First Amendment as to adults. In two previous cases, the Supreme Court had reviewed similar age verification laws, applied strict scrutiny, and found them lacking.  

No longer.

The FSC Court upheld the Texas law by applying what is known as “intermediate scrutiny,” a less rigorous standard of review. To get to this desired result, the majority, led by Justice Thomas, focused on the traditional power the government has to prevent minors from accessing content that is obscene for them. Obscenity is not protected by the First Amendment. Speech that is obscene to minors is constitutionally protected for adults, but not for minors. The Court construed the statute as attempting to restrict access only to content that is obscene for minors and seemed to reason that because some of the content at issue is not constitutionally protected as to some people, burdens on accessing that content need not be subject to strict scrutiny. Instead, they can be treated in the same way as statutes that place incidental burdens on speech. In prior cases, the standard of review applied to incidental burdens on speech was reserved for statutes that were not aimed at regulating speech at all, but nonetheless had an impact on expression (e.g., a law that prohibited destroying draft cards). 

Most alarmingly, in reaching this decision, the Court created a new category of speech, which it calls “partially protected speech.” It characterizes this newly announced category as “speech that the government may impose certain content-based restrictions [upon] but may not proscribe … outright.” The Court includes speech that is obscene as to minors in this category, but it does not clarify whether other types of  speech may also be such “partially protected” speech. 
Falling into this “partially protected” category could carry significant consequences for the regulation of such speech, because the Court indicates that within this category the government has greater leeway to burden speech rather than ban it. This, again, is a departure from longstanding precedent, which had held that there was no difference, from a constitutional standpoint, between a ban and a burden on speech when the statute was targeting speech for disfavored treatment on the basis of content. As Justice Kagan puts it in her dissent, “[the] First Amendment prevents making speech hard, as well as banning it outright.” But for “partially protected” speech, the FSC majority somehow found that a governmental burden on accessing “partially protected” speech (e.g., submitting to age verification) is somehow less constitutionally problematic than a ban on that speech, entirely ignoring — again — longstanding contrary precedent.

The Implications for Online Speech and Kids’ Safety Legislation

Accordingly, the majority opinion in FSC v. Paxton is a major departure from precedent in more ways than one. As long as this precedent stands, governments in the United States can require adults to “show their papers” in order to access speech that they have the constitutional right to view where minors do not. But it would be a mistake to read this decision as permitting age verification requirements to access content beyond the narrow category of speech that is obscene for minors. The decision, despite its flaws, should be construed quite narrowly.

When can age verification be required now?

Under FSC v. Paxton, states and the federal government are allowed to require age verification for the purposes of accessing content that is obscene for minors online. The Court reasoned that only adults have the constitutional right to access such content and therefore everyone, both adults and minors, can logically be required to submit to age verification in order to be able to view such content. The decision should be construed to sweep no more broadly than that. 

The decision also included important limiting language regarding the scope of what can be considered “obscene” for minors. The FSC Court reiterated the constitutional test for what is obscene for minors. The definition encompasses “works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifically defined sexual conduct in a way that is patently offensive for minors, and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors.” As to what kind of content that might entail, a previous Supreme Court case, Ginsberg v. New York, had found that “girlie magazines,” like Playboy, could be considered to fall in this category. The FSC Court in a footnote gave additional guidance illustrating how limited this category of speech is. The Court declined to decide whether the statute needed to clearly delineate whether speech covered by the statute would be obscene as to all minors (e.g., from toddler-hood to adolescence) and doubted whether the distinction was of much significance because very young children may not have prurient interests and therefore only the perspective of adolescents would be relevant. It further noted that speech obscene for minors “cannot conceivably be read to cover, say, a PG-13 or R Rated movie.” 
Despite the narrow scope, the Court’s opinion will have devastating consequences for access to sexually explicit content and especially for the speech of sex workers. It also creates significant risks for educational speech about sex and reproductive health and for the LGBTQ community’s speech. It will be critical, going forward, to ensure that courts do not interpret FSC v. Paxton to apply to laws that go beyond the narrow category of content identified by the Court in this case.

What does this mean for other proposals and laws that would require age verification?

In many states across the country and in the halls of Congress, a number of bills are being considered or have already become law that would also require or incentivize age verification to access certain content or speech services. These include the following:

• Kids Online Safety Act (KOSA) and similar state legislation would impose a duty of care on covered services requiring them to take reasonable steps in their design features to prevent and mitigate certain harms to minors including “mental health disorders” like anxiety and depression or bullying.
• Kids Off Social Media Act (KOSMA) and similar state legislation would simply ban minors under a certain age from accessing social media sites in their entirety or require parental consent for accessing such services.
• The App Store Accountability Act and similar state legislation would require app stores to verify the ages of all users and provide that information to app developers for the purposes of restricting minors’ access to certain apps or content made available on the apps.
• California’s Age Appropriate Design Code Act and other similar state laws require covered services to estimate their users’ ages to “a reasonable level of certainty appropriate to the risks that arise” from the service, including the risk that children will be exposed to “harmful” content.

These provisions differ in many ways, but they have one thing in common. Their age verification requirements sweep far more broadly than the Texas statute at issue in FSC, attempting to ban or restrict minors’ ability to access content to which they have a constitutional right, with significant implications for adults’ access to speech as well. The reasoning of the FSC Court does not and should not extend to these laws and proposals. 

Under the FSC decision, statutes requiring age verification to access content beyond what is obscene for minors still face a high constitutional bar. In discussing its prior decision striking down the Communications Decency Act, which prohibited the delivery of obscene or indecent content and content that was patently offensive to minors, the FSC Court noted that the CDA effectively suppressed a large amount of speech that adults have a constitutional right to access and that, even as to minors, the law swept beyond obscenity to include important nonpornographic speech, including speech with educational value. This breadth in the majority’s view was what justified applying strict scrutiny to strike down the law.

The FSC decision also leaves undisturbed a long line of precedent establishing that children have First Amendment rights and “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Most relevant for our purposes, in Brown v. Entertainment Merchants Association, the Supreme Court applied strict scrutiny to strike down a California statute restricting the sale of violent video games to minors. In that decision, the Court noted, “No doubt a State possesses legitimate power to protect children from harm, […], but that does not include a free-floating power to restrict the ideas to which children may be exposed.” Therefore, to the extent that an age verification requirement applies to speech that is fully constitutionally protected — i.e., protected as to both minors and adults — the reasoning of both FSC and Brown require reviewing courts to apply strict scrutiny.

Proposals like KOSA, ASAA, and the CA AADCA, which would require platforms to guess what kinds of content (beyond sexually explicit content) might “harm” children and to ensure that children do not see it, or KOSMA, which would ban minors from accessing entire speech platforms on the basis of the content the platform hosts, should therefore be subject to strict scrutiny and doomed to fail.

NetChoice v. Fitch and The Work to Come

The limits of FSC are currently undergoing their first tests. One relates to a Mississippi law requiring all social media platforms to verify the ages of their users and to refuse to provide service to users under 18 without parental consent. For users that do obtain parental consent under the law, social media platforms must restrict the delivery of a wide range of content to those users. A federal district court issued an injunction preventing the law from taking effect, reasoning that it was likely unconstitutional under the First Amendment. The Fifth Circuit Court of Appeals removed the injunction, permitting the law to take effect. NetChoice, an industry trade group, filed an emergency petition asking the Supreme Court to reinstate the injunction pending litigation. 

CDT joined an amicus brief, led by the Foundation for Individual Rights and Expression (FIRE), supporting NetChoice’s petition. We argued that the Court’s reasoning in FSC v. Paxton is inapplicable to Mississippi’s law because, unlike the Texas law, it is aimed at restricting minors’ access to content that is constitutionally protected for them. Moreover, Mississippi has not articulated the harms banning minors’ access to social media would alleviate, nor can it. The statute therefore violates the First Amendment rights of minors and adults alike and should not be allowed to go into effect.

The Supreme Court, unfortunately, denied the petition, allowing the Mississippi law to take effect pending review. However, Justice Kavanaugh issued a concurrence making clear his belief that the Mississippi law likely violates the First Amendment. The Kavanaugh opinion is a helpful indicator that the decision in FSC v. Paxton is not boundless and that laws that extend beyond its scope must continue to face the highest standard of scrutiny. Even so, there remains much more work to do to ensure that efforts to shield minors from harm also protect free expression online and ensure privacy remains protected when accessing sexually explicit content. CDT is prepared to lead the charge.