From Strict to Slack: SCOTUS Resets Speech Rules

Free SpeechData PrivacySCOTUS
Written By Kris MILLER

Online age verification appears to be a constitutional limitation on conduct, not access to lawful speech.

Free Speech Coalition v. Paxton: A Troubling Shift in First Amendment Law

The U.S. Supreme Court’s decision in Free Speech Coalition v. Paxton marks a significant and troubling departure from established First Amendment principles. At issue was Texas House Bill 1181, which requires commercial websites containing more than one-third sexual content to implement mandatory age verification, typically by collecting government-issued ID or other sensitive data. The law also mandates “health warnings” on adult websites, though that provision was not before the Court.

A federal district court struck down HB 1181, recognizing it as an unconstitutional content-based burden on speech. The Fifth Circuit reversed, and the Supreme Court, in a 6–3 decision authored by Justice Clarence Thomas, upheld the law. The ruling applies only intermediate scrutiny, not strict scrutiny, to a law that explicitly targets lawful speech. This shift represents a major weakening of First Amendment protections for adults and opens the door for far more aggressive regulation of online speech in the name of “protecting children.”

Content-Based Regulation Without Strict Scrutiny

For decades, Supreme Court precedent has been clear: laws that burden speech based on its content trigger strict scrutiny. This was reaffirmed in Ashcroft v. ACLU (2004), which struck down the Child Online Protection Act’s similar age-verification requirements as unconstitutional. The Court in Ashcroft emphasized that less restrictive alternatives, such as parental filtering software, were both more effective and more protective of adult speech rights.

The Paxton majority sidesteps Ashcroft entirely, holding that HB 1181 warrants only intermediate scrutiny. The opinion frames the case not as a regulation of speech but as a regulation of “conduct”; specifically, the conduct of accessing content without verifying age. This recharacterization allows the Court to water down the scrutiny applied and ultimately to uphold a law that places significant burdens on adult access to lawful speech.

Justice Kagan, writing for the dissent, called HB 1181 a straightforward content-based law that should have failed strict scrutiny under Ashcroft. She criticized the majority for introducing a novel and undefined concept of “partially protected speech,” which now carries its own built-in burdens. This is a dangerous and circular precedent.

Privacy, Security, and Practical Failures

The majority showed little concern for the privacy and security risks of mandatory online age verification. Unlike showing ID to a store clerk, online systems require the creation of digital trails of highly sensitive data (government IDs, biometric scans, or financial information) with little assurance of security or limited use. Poorly designed verification systems could expose adults to identity theft, surveillance, and chilling effects on lawful expression.

Nor did the Court seriously consider the effectiveness of the law. As critics have pointed out, children can easily circumvent state-specific measures using VPNs, foreign websites, or other devices. HB 1181 does nothing to address pornography available through social media, search engines, or gaming platforms. Instead of requiring Texas to narrowly tailor its law, the Court effectively blessed any age-verification system, no matter how invasive or ineffective, as constitutionally permissible.

Weakening the First Amendment by Degrees

Perhaps most troubling is the decision’s broader doctrinal impact. Paxton blurs several key First Amendment distinctions:

1. Speech vs. Conduct

The Court treats speech regulations as conduct regulations, allowing the government to impose significant burdens without triggering strict scrutiny.

2. Bans vs. Burdens

Historically, the Court treated burdens on speech with the same suspicion as outright bans. Paxton suggests burdens may now receive lighter review.

3. Protected vs. Unprotected Speech

The decision invents a middle category of “partially protected speech,” undermining the clear threshold test of whether speech is protected at all.

4. Online vs. Offline Speech

Rather than acknowledging the unique challenges of online speech and privacy, the Court analogizes the internet to a brick-and-mortar store, applying 1960s-era reasoning to 21st-century technology.

The result is a doctrinal framework that makes it easier for legislatures to impose sweeping digital regulations in the name of child protection or other public interests. This is precisely the kind of ends-justify-the-means reasoning that has historically been viewed with suspicion in constitutional law.

Rapid Expansion to Other Laws

The effects of Paxton are already being felt. Shortly after the decision, the Fifth Circuit lifted an injunction blocking Mississippi’s HB 1126, a law requiring parental consent and age verification for social media accounts. Mississippi cited Paxton extensively, claiming it permits broad regulation of online platforms to protect children. Similar arguments are now appearing in litigation over Florida’s HB 3, which bars minors under fourteen from having social media accounts and imposes parental consent requirements for older teens.

The risk is clear: Paxton will be used not just to justify regulation of pornography but to expand state power to regulate any online speech or platform that lawmakers say might harm children with reduced judicial scrutiny.

Practical Consequences for Businesses and Innovation

For businesses, Paxton signals an era of costly compliance burdens. Age-verification systems are expensive to build and maintain, and the risk of non-compliance penalties may deter smaller platforms or startups from operating in certain states altogether. Following the Supreme Court’s refusal to block Mississippi’s law, the social platform Bluesky announced its exit from the state, citing privacy concerns and compliance costs that would “overwhelm smaller providers” and entrench large incumbents. This outcome chills innovation and competition while doing little to meaningfully protect children online.

Looking Ahead

While there is a narrow reading of Paxton (limited to material “obscene as to minors”) the opinion’s broad language invites legislatures and courts to experiment with far-reaching restrictions. Businesses should expect more state-level child-protection laws targeting social media, online content, and digital services, often with intrusive verification and data-collection requirements.

For privacy advocates and civil libertarians, the decision is a wake-up call. The Court has signaled a willingness to dilute First Amendment protections in the digital age. The burden now falls on businesses, technologists, and rights advocates to push for privacy-preserving, narrowly tailored solutions — and to resist the normalization of broad state control over online speech.

Key Takeaways for Executives

  • The Supreme Court lowered the bar for speech restrictions.
    Free Speech Coalition v. Paxton applies intermediate scrutiny, not strict scrutiny, to laws requiring online age verification for content deemed “obscene as to minors.” This is a major departure from precedent.

  • The decision expands state regulatory power.
    Legislatures can now impose broad age-verification mandates with minimal judicial oversight, even if they sweep in lawful adult speech. Expect more state-level “protect the children” laws.

  • Significant compliance and cost burdens ahead.
    Businesses may be forced to collect and store government IDs or sensitive data to verify age. This creates privacy, security, and liability risks and favors large incumbents over smaller players.

  • Risk of chilling lawful speech.
    The ruling treats burdens on speech as less constitutionally suspect than bans. This opens the door to dragnet verification regimes that deter adults from accessing legal content.

  • Precedent invites misuse.
    States are already citing Paxton to defend social media age-gating and consent laws, even beyond pornography regulation. The decision will be used to justify broader online regulation.

  • Innovation is at risk.
    Smaller platforms may exit markets rather than bear the cost of compliance (e.g., Bluesky left Mississippi). Market consolidation likely benefits big tech at the expense of competition.

    Strategic implications for boards and GCs:

    • Evaluate exposure to state laws imposing age verification.

    • Assess data handling, privacy, and cybersecurity risks for compliance.

    • Monitor litigation closely. Paxton may embolden lawmakers to pass more sweeping laws affecting your business.

    • Prepare for fragmented, state-by-state compliance regimes and potential conflict with global privacy rules (e.g., GDPR).

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1GDPA offers this blog for educational and commentary purposes. Nothing in this article should be construed as legal advice and no attorney-client or fiduciary relationship is formed herein.

Sources

Kris MILLER
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