Supreme Court Mulls Texas Proof of Age Requirement for Web Site Access
1.22.2025
The U.S. Supreme Court is assessing arguments for and against a Texas law that requires subscribers of sites with sexually explicit content to provide proof that they are of age. Counsel for both sides, including the solicitor general of the state of Texas, appeared on Jan. 15 at the Court in Washington D.C. in the case captioned, Free Speech Coalition v. Paxton. A ruling by the high court is expected in the coming months.
According to the American Civil Liberties Union, in 20 states across the country, access to some sites on the Internet is “cordoned off” as these content providers publish sexually explicit images and words. To access the digital content, users, depending upon the jurisdiction, may have to show their driver’s license, offer up financial information, or even submit a biometric scan.
The ACLU argues that Supreme Court case law, the Ashcroft decision from the George W. Bush era, two decades ago, then held that websites cannot be compelled to verify the age of their users, and should serve as binding precedent now for this controversy.
The Paxton case was granted cert from a decision in the Fifth Circuit Court of Appeals last year.
“A Fifth Circuit majority held that mere rational basis review, the most lax form of judicial scrutiny, applies to a Texas law that burdens constitutionally protected speech based on its content, specifically by imposing an age verification barrier before anyone can access a sexually themed website,” said Derek L. Shaffer, counsel for the petitioners, during oral argument before the court last week.
Rational Basis Review
A “rational basis review” is the legal standard deployed by courts to determine if a law is constitutional, and a law is considered valid if it is rationally related to a legitimate government interest.
Justice Clarence Thomas told counsel that in his opinion the rational basis doctrine “would permit quite a high burden on the First Amendment rights of adults versus strict scrutiny.” The Texas law, H.B. 1181, regulates sexual content, including AI-generated or altered images, that is potentially harmful to minors.
But Shaffer added: “That aberrant holding defies this Court’s consistent precedent, including its Ashcroft decision, as Judge [Patrick] Higginbotham well explained in his dissent. This Court should begin by confirming that strict scrutiny continues to apply to any such content-based burden on websites and their adult users.”
