(Toward) Three Cheers for the Supreme Court  

Free Speech Coalition, Inc. v. Paxton is one good case among many from this Supreme Court’s term. At stake was a Texas law, H. B. 1181, requiring porn sites to verify the ages of their users to protect children from pornography. The Court noted that at least twenty-one other states had similar laws, and for good reason; pornography is diabolically destructive, for children even more so. The Court upheld the Texas law, which is very good news for all. 

The pornographers masquerading as free-speech warriors had argued that the Texas law violated the First Amendment under the most stringent of the three standards in the Court’s precedents, a standard called strict scrutiny. Texas, meanwhile, contended that the law should be analyzed under the most lenient standard, called rational basis review, and that it did not run afoul of the First Amendment. But the Court, with Justice Clarence Thomas writing for the 6–3 majority, held that the middle-of-the-road standard called intermediate scrutiny applied—and that the Texas law passed constitutional review. 

Unlike with adults, children’s access to pornography is not a First Amendment right. It is astounding that pornography, vile as it is, is protected as free speech. Free speech does not cover obscenity, but much of pornography, incredibly, falls outside of what counts as obscenity by a standard set by Miller v. California (1973): a work is obscene if (1) the average person would find it to be appealing to the prurient interest, (2) it depicts sexual conduct in a patently offensive way, and (3) the work as a whole “lacks serious literary, artistic, political, or scientific value.” Miller sets an awfully high bar to define obscenity. 

In our current jurisprudence then, adults do have a First Amendment right to access porn, and further, following Miller’s first prong, what is obscene is understood from the perspective of the average adult. But states may apply Miller to define obscenity from the perspective of the average child. Thus what is considered obscene for children may not be obscene for adults. Following history, tradition, and precedent, children do not have a First Amendment right to access pornography.  

Why No Strict Scrutiny  

The Supreme Court ruled that strict scrutiny was not the right standard to be applied to H. B. 1181. Whenever there has been an outright ban on sexually explicit materials applied to children and adults alike, strict scrutiny has been triggered. The Court distinguished the Texas law from others that have issued such blanket bans, but two in particular: the Communications Decency Act of 1996 (CDA) under review in Reno v. American Civil Liberties Union (1997) and the Children’s Online Privacy Protection Act of 1998 (COPA) under review in Ashcroft v. American Civil Liberties Union (2004). Both CDA and COPA restricted children’s and adults’ access to sexually explicit materials, thus a “content-based restriction” of protected speech, triggering strict scrutiny and not surviving it.  

Strict scrutiny is a heightened standard requiring that the government not only have a compelling interest, but that it use the least restrictive means to achieve that interest. The Court noted that only once (!) has there been a law that was found to survive strict scrutiny (a 2010 case having to do with a federal statute that barred providing material support knowingly to foreign terrorist organizations). So it was not surprising that neither CDA nor COPA survived strict scrutiny.  

There was an age-verification requirement in CDA, much like the Texas law, but in the early days of the internet, technology did not yet exist to prevent minors from accessing the content without also preventing adults. The Court noted that technology and the internet have gone a long way since, and now age verification really can separate minors from adults, blocking or granting access accordingly. As to COPA, its age verification was designed to be used as an affirmative defense, such that implicated speakers would already have been prosecuted and compelled to “risk the perils of trial.” By contrast, under the Texas law, age verification was one of the elements that the government had to prove in its prosecution. So unlike CDA and COPA, Texas did not implement a blanket ban on porn sites for both children and adults. 

Intermediate Scrutiny 

The Court found that any burden on adults to access porn due to age verification was no more than an incidental effect on their protected speech, thus triggering only intermediate scrutiny. A law survives intermediate scrutiny if it (1) serves important governmental interests that are not related to the restrictions of free speech and (2) does not place substantially more burden on speech than is needed to serve those interests. What’s more, intermediate scrutiny does not require that the government use the least restrictive means to serve those interests.  

The Court said that certainly the state had an important interest in protecting children from sexually explicit content under its police powers of regulating morals, health, safety, and welfare. No First Amendment rights disturb such police powers. The Court also took the time to remind us that for such a power that the state retains under the Constitution, the “ordinary and appropriate means” of exercising such power is inherent in it. 

The Court found that an age-verification requirement to protect children from obscene materials from the perspective of a child was one such means. Age verification can be found in a myriad of other contexts: procuring a driver’s license, tobacco, alcohol, tattoo, body piercing, lottery ticket, fireworks. Similarly, federal law requires age verification in getting a job as a minor or some medications from a pharmacy. Age verification holds even when, relating to age, fundamental rights are concerned: registering to vote, getting a gun license, getting married. And most important, there is precedent right on the money: age verification for a brick-and-mortar store selling “girlie magazines” in Ginsberg v. New York (1968), still good law to date. The Court said, very sensibly, that shielding minors from sexually explicit content on the internet should not be subject to a different rule.  

Whatever rights adults do have, they don’t have a First Amendment right to avoid verifying their age. The age-verification requirement employed by Texas through the available and chosen technology was found to be modest, not burdening adults’ speech more than necessary. Any burden on adults from having to verify their ages, then, was merely incidental to the burden on speech, making it appropriate for intermediate scrutiny.  

Why No Rational Basis Review 

But that was also precisely the reason that the Court declined to apply the lenient rational basis standard. Rational basis would favor the government’s position and allow the challenged law to stay in place as passing constitutional muster. Not surprisingly, Texas had argued that rational basis should apply. To be sure, the Court did find the Texas law to be constitutional and allowed it to stand under intermediate scrutiny. But the Court said that rational basis would be the wrong standard for it because the Texas law did interfere with adults’ fundamental rights of free speech, however incidentally. 

To illustrate the point, the Court cited a hypothetical scenario posed by Justice Jackson during oral arguments: would an age-verification law pass rational basis if it were to require proof of age by presenting an affidavit from the user’s biological parent? The Texas solicitor general, arguing the case on behalf of the government, conceded that it would not. Justice Thomas pointed out that this was precisely the sorting-out of constitutionality that intermediate scrutiny is well suited to do. According to the second prong of intermediate scrutiny, as mentioned above, a law must not place substantially more burden on speech than is needed to serve the government’s interests. Requiring an affidavit from one’s biological parent to verify one’s age would be more burdensome to speech than necessary; what Texas required using modest means of age-verification technology was not. And because intermediate scrutiny, unlike strict scrutiny, does not require that the government use the least restrictive means, the Court need not invalidate the law, as had been urged by the pornographers, if parental filters, argued to be a less restrictive means than age verification, weren’t used instead. 

As to the Dissent 

Justice Kagan, writing a dissent joined by Justices Jackson and Sotomayor, seemed intent on missing the fact that the Texas law did not impose a blanket ban against sexually explicit materials precisely through its age-gating mechanism, and as such was not content-based and undeserving of strict scrutiny. She called COPA “a near-twin of Texas’s” without accounting for how COPA’s age-verification technology of a quarter century ago was incapable of keeping minors out while letting adults in, unlike the technology of 2025. 

As Justice Thomas wrote, “so long as the dissent accepts Ginsberg, it cannot deny that the question before us is which content-based regulations States may impose on adults without triggering strict scrutiny, not whether they may do so.” It simply does not stand to reason—is absurd, even—that what is true for a brick-and-mortar porn store isn’t also true of online porn. 

It is good to see that Justice Kagan, in asserting that strict scrutiny would have been the appropriate standard for the Texas law, thought it wouldn’t have necessarily meant the death knell for the law. She observed that perhaps the urged-for (by the pornographers) least restrictive means of parental filters really wasn’t a viable means at all. The reader takes Justice Kagan in good faith. But really, one wonders, what were the odds of survival going to be in that scenario? Strict scrutiny almost always (in every case save one, as mentioned earlier) results in the law under review being struck down.  

Make Porn Obscenity Again 

So we are grateful for what the Court stands for. One interesting detail in the Court’s opinion, in response to the pornographers’ loud protestations of “why them?”—that porn was still accessible to minors in sundry places online like social media—is the Court responded irenically that “under immediate scrutiny, the First Amendment imposes no freestanding underinclusiveness limitation, and Texas need not address all aspects of a problem in one fell swoop” (internal quotation marks omitted).   

Well put, and well done. And yet: sexually explicit content is overtly out there online, no longer consigned to lurking in dark thievish corners. This may remind us that as good as this case is, a decent citizen of the land wishes that porn could be understood as obscenity as it once would have been—which would mean no First Amendment right for porn even for adults. Call it “Make Porn Obscenity Again.”  

As I have previously written in these pages, it would be a good thing to understand free speech as protecting the pursuit of truth. Speech and reason are two related meanings of the word logos: what gives man his worth, his partaking in the very Logos. The pursuit of truth through reason is good for man and is about his flourishing. But porn? Vile and anti-human, it degrades and deforms us. There is no pursuit of truth in porn. None but vice. Relatedly, to understand the First Amendment as protecting adults to watch porn is such a cheapening, such a grotesque warping, of the First Amendment.  

As we strive toward a more perfect union, we hope one day we’ll lay hold of that better reading of the First Amendment. But for now, it is cause for gratitude for the Supreme Court’s ruling. 

Image licensed via Adobe Stock.