Free Speech Coalition v. Paxton
Facts
Texas enacted H. B. 1181, which applies to commercial websites where more than one-third of the content is sexual material harmful to minors. Covered websites must use reasonable age-verification methods to verify that a user is at least 18, using government-issued identification or a commercially reasonable method relying on transactional data, either directly or through a third party. The law authorizes enforcement by the Texas attorney general through injunctions and civil penalties. Petitioners, including a pornography-industry trade association, website operators, and a performer, argued that the law impermissibly burdens adults' First Amendment right to access at least some of the covered speech.
Issue
What level of First Amendment scrutiny applies to Texas's law requiring age verification before access to online sexual material harmful to minors, and whether the law is likely facially constitutional under that standard. More specifically, does the burden on adults' access rights trigger strict scrutiny, rational-basis review, or some intermediate standard?
Rule
A State's traditional power to prevent minors from accessing speech obscene from their perspective includes the ordinary and appropriate means necessary to enforce that restriction, including requiring proof of age. When an age-verification law applies to speech obscene to minors and does not ban adults from accessing that material, any burden on adults' protected access is only incidental, so the law is subject to intermediate scrutiny rather than strict scrutiny or rational-basis review. Under intermediate scrutiny, the law is valid if it advances an important governmental interest, would make that interest less effectively achieved without the regulation, and does not burden substantially more speech than necessary; it need not be the least restrictive means.
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A trade association for adult-content publishers brings a facial First Amendment challenge, arguing the law is content based because it applies only to sexually explicit material. What level of scrutiny should a court apply under the majority's approach?