Five Things to Know about the Supreme Court Case on Texas’ Age Verification Law, Free Speech Coalition v Paxton

The Supreme Court will hear arguments on Wednesday in a case that will determine whether states can violate adults’ First Amendment rights to access sexual content online by requiring them to verify their age.  

The case, Free Speech Coalition v. Paxton, could have far-reaching effects for every internet users’ free speech, anonymity, and privacy rights. The Supreme Court will decide whether a Texas law, HB1181, is constitutional. HB 1811 requires a huge swath of websites—many that would likely not consider themselves adult content websites—to implement age verification.  

The plaintiff in this case is the Free Speech Coalition, the nonprofit non-partisan trade association for the adult industry, and the Defendant is Texas, represented by Ken Paxton, the state’s Attorney General. But this case is about much more than adult content or the adult content industry. State and federal lawmakers across the country have recently turned to ill-conceived, unconstitutional, and dangerous censorship legislation that would force websites to determine the identity of users before allowing them access to protected speech—in some cases, social media. If the Supreme Court were to side with Texas, it would open the door to a slew of state laws that frustrate internet users’ First Amendment rights and make them less secure online. Here's what you need to know about the upcoming arguments, and why it’s critical for the Supreme Court to get this case right.

1. Adult Content is Protected Speech, and It Violates the First Amendment for a State to Require Age-Verification to Access It.  

Under U.S. law, adult content is protected speech. Under the Constitution and a history of legal precedent, a legal restriction on access to protected speech must pass a very high bar. Requiring invasive age verification to access protected speech online simply does not pass that test. Here’s why: 

While other laws prohibit the sale of adult content to minors and result in age verification via a government ID or other proof-of-age in physical spaces, there are practical differences that make those disclosures less burdensome or even nonexistent compared to online prohibitions. Because of the sheer scale of the internet, regulations affecting online content sweep in millions of people who are obviously adults, not just those who visit physical bookstores or other places to access adult materials, and not just those who might perhaps be seventeen or under.  

First, under HB 1181, any website that Texas decides is composed of “one-third” or more of “sexual material harmful to minors” is forced to collect age-verifying personal information from all visitors—even to access the other two-thirds of material that is not adult content.  

Second, while there are a variety of methods for verifying age online, the Texas law generally forces adults to submit personal information over the internet to access entire websites, not just specific sexual materials. This is the most common method of online age verification today, and the law doesn't set out a specific method for websites to verify ages. But fifteen million adult U.S. citizens do not have a driver’s license, and over two million have no form of photo ID. Other methods of age verification, such as using online transactional data, would also exclude a large number of people who, for example, don’t have a mortgage.  

The personal data disclosed via age verification is extremely sensitive, and unlike a password, often cannot easily (or ever) be changed.

Less accurate methods, such as “age estimation,” which are usually based solely on an image or video of their face alone, have their own privacy concerns. These methods are unable to determine with any accuracy whether a large number of people—for example, those over seventeen but under twenty-five years old—are the age they claim to be. These technologies are unlikely to satisfy the requirements of HB 1181 anyway. 

Third, even for people who are able to verify their age, the law still deters adult users from speaking and accessing lawful content by undermining anonymous internet browsing. Courts have consistently ruled that anonymity is an aspect of the freedom of speech protected by the First Amendment.  

Lastly, compliance with the law will require websites to retain this information, exposing their users to a variety of anonymity, privacy, and security risks not present when briefly flashing an ID card to a cashier.  

2. HB1181 Requires Every Adul