OBSCENITY FOR WHOM?: AGE VERIFICATION IN THE INTERNET AGE

In the early days of the internet, Congress tried to address minors’ access to online pornography through the Communications Decency Act of 1996 and Child Online Protection Act of 1998. The age verification provisions of both laws were struck down as burdening the free speech rights of adults. Amid the immense proliferation of online pornography, a number of states have recently reinvigorated the fight with their own age verification laws for obscene content. The Supreme Court heard a challenge to Texas’s law, H.B. 1181, in Free Speech Coalition v. Paxton, argued in January 2025.

History and precedent are clear that obscenity is categorically unprotected by the First Amendment. Where Texas’s law faces murky waters is because it modifies the governing Miller test for obscenity to include content that is only obscene for minors. Such content is still unprotected for minors—so age requirements don’t violate the minors’ rights—but adult plaintiffs argue that the age verification burdens their own access to speech that, for them, is constitutionally protected. This Article discusses the various legal arguments at play in Free Speech Coalition. Ultimately, Texas’s current law should—and likely will—pass constitutional muster, but this Article argues that it didn’t need to jump through these hoops: The State could have accomplished its primary goal—to protect minors from commercial pornography—by only requiring age verification for content that is obscene for adults; little content falls between those standards, and it would remove any complaint from the adults plaintiffs since the State could have banned that content entirely if it had chosen to do so. Finally, this Article briefly and tentatively discusses the historical purpose of free speech as primarily with respect to public political discourse, suggesting that obscenity might receive too much protection under current doctrine.

INTRODUCTION

It is undeniable that the consumption of—or at least exposure to—pornography is ubiquitous in contemporary society. During one month last in 2024, Pornhub bested Amazon, TikTok, and LinkedIn as the 12th most-visited website in the world, and in 2020, pornography sites were more trafficked than Twitter, Instagram, Netflix, Zoom, Pinterest, and LinkedIn combined. Pornhub alone boasted 42 billion visits in 2019 and transferred 6,597 petabytes of data that year—more than the entire internet in 2002. A report from the Survey Center on American Life found that more than 40% of all adult men in the United States “used” pornography in the past month, and among men aged 30-42, that number crept up to 42% in the past week.

Given the widespread usage, it is unsurprising that a majority of Americans oppose efforts to ban pornography entirely. In fact, not only does the general public believe that the government should not involve itself with adults’ pornographic habits, but it also likely assumes that the government cannot do so without violating bedrock free speech principles.

However, a slightly deeper look shows that obscenity is not, and has never been considered to be, within the range of speech protected by the First Amendment. In the 1942 case Chaplinsky v. New Hampshire, the Supreme Court first explicitly acknowledged the existence of a “well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” The Court’s decision in Roth v. United States fifteen years later made clear that “this Court has always assumed that obscenity is not protected by the freedoms of speech and press” because “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” Although the Supreme Court has debated over the precise parameters of what constitutes unprotected obscenity, nearly every justice since Chaplinsky and Roth (except for Justices Douglas and Black) has recognized that such a category does exist, at least in theory. 

In Roth, the Supreme Court first set out a standard that material is obscene and thereby Constitutionally unprotected if, “to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” However, this bar quickly proved unworkable, and the Court spent much of the next decade and a half deciding the permissibility of various individual state restrictions on a plurality basis while fiddling at the margins and mostly failing to cobble together a majority that could define a new standard. Eventually, the Supreme Court wound up with obscenity defined by a three-pronged test—to a lesser or greater extent along the contours of Roth—first delineated in the 1973 case Miller v. California and which remains good law more than fifty years later:

“A state offense must also be limited to works (1) which, taken as a whole, appeal to the prurient interest in sex, (2) which portray sexual conduct in a patently offensive way, and (3) which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”

In Free Speech Coalition v. Paxton, neither party contests that long-settled conclusion that obscenity is unprotected by the First Amendment, nor that the state could ban adults from content that is obscene for adults or even minors from content that is only obscene for minors (a lower standard). Instead, Free Speech Coalition addresses a Texas law that mandates age verification for adults to view content defined in the statute as obscene for minors, even if that content (might) be protected non-obscenity for adults. Part I of this Article will briefly explain what the challenged law, H.B. 1181, does and which content it covers. Part II will then walk through the most on-point precedents to Free Speech Coalition, in particular Reno v. American Civil Liberties Union and Ashcroft v. American Civil Liberties Union, which dealt with similarly-structured age verification laws from the early ages of the internet in the 1990s and early 2000s. Part III explains the arguments that the Free Speech Coalition and Texas have made, respectively, regarding the standard of review to which the Supreme Court should hold H.B. 1181, and whether the law can survive strict scrutiny if examined under that standard. Finally, Part IV discusses other ways Texas could have drafted the law that would have been undoubtedly constitutional without encroaching on the thorny distinction between what content is only obscene for minors but not adults. The Conclusion again focuses more broadly, tentatively discussing the purpose of free speech in the American political system and its primary aim to cover disfavored opinions in the realm of public affairs, and how that impacts the protection that even comparatively “mild” obscenity should receive more broadly.

I. THE CASE

On January 15, 2025, the Supreme Court heard oral arguments in Free Speech Coalition. Free Speech Coalition, a euphemistically-named trade association of the “adult entertainment industry,” challenged Texas’s H.B. 1181, which required websites to use “reasonable age verification methods… to verify that an individual attempting to access the material is 18 years of age or older” if more than one third of the content on the website is “sexual material harmful to minors.” § 129B.001 defines “sexual material harmful to minors” by pulling from the governing three-prong Miller standard for obscenity that is not protected by the First Amendment.

If the Texas law had stopped there, there would be no case: As mentioned, it is long-settled law that the First Amendment is not absolute and does not protect obscenity. Critically, however, H.B. 1181 modified the Miller test to include content that is obscene “with respect to minors.” Neither party argues that minors possess a First Amendment right to view material that is obscene for minors, but the Supreme Court has also long held that the State cannot ban for adults what is only obscene for minors; to do so, “denie[s] adults their free speech rights by allowing them to read only what was acceptable for children.” Therefore, H.B. 1181 sits in a wrinkle in First Amendment jurisprudence in which certain content is protected for some individuals (adults) but not for others (children).

II. PRECEDENTIAL BACKGROUND

In Reno v. ACLU, the Supreme Court heard a challenge to a provision of the Communications Decency Act of 1996 (CDA) which forbade individuals or telecommunication providers from transmitting a “communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age.” The law allowed an affirmative defense if the providers made “good faith” efforts to restrict access to minors through age proofs such as credit cards or adult identification codes. The Court differentiated between the law’s application to “obscene” communication (which it upheld) and “indecent” communication (which it struck down), explaining, “In evaluating the free speech rights of adults, we have made it perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment.’”

Analyzing the law’s restrictions on protected “indecent” speech, the Court applied strict scrutiny and demanded that the “otherwise patently invalid unconstitutional provision” must be “narrowly tailored” to further its intended purpose. Reno’s standard of review followed Sable Communications v. FCC, which held a similar law to the highest level of scrutiny insofar as it also tried to ban even “indecent” communications in addition to material deemed obscene. Reno’s restrictions on indecent content failed strict scrutiny at least in part because the required methods of age verification were “effectively unavailable to a substantial number of Internet content providers” due to technological limitations at the time. (Both laws were upheld as applied to obscene content not protected by the First Amendment.)

In response to Reno, Congress went back to the drawing board and passed the Child Online Protection Act (COPA), which was closely tailored to the objections that the Court had with the CDA. Nevertheless, in Ashcroft II, COPA met the same fate as its predecessor. The Court applied strict scrutiny, and the law failed under that standard: Instead of mandating age-gating, the Court determined that the government could encouraged the use of filtering technology as a “less restrictive” alternative that “also may well be more effective” than age verification requirements at preventing minors from accessing inappropriate content.

III. THE PARTIES’ ARGUMENTS

Texas and the challengers dispute the standard of review under which H.B. 1181 should be evaluated: Texas claims that the law only needs to pass rational-basis review, while the pornographers assert that it fails under strict scrutiny. Texas further maintains that even if the challenged law is held to strict scrutiny, it nevertheless meets those requirements.

A. Standard of Review

The Free Speech Coalition argues that H.B. 1181 should be held to strict scrutiny, in line with Ashcroft II: They admit that Texas has a compelling interest in protecting children from pornography, but claim that H.B. 1181 is not narrowly tailored nor the least restrictive means of accomplishing that goal as strict scrutiny requires. Laws held to strict scrutiny generally fail to pass that burden; during oral arguments in Free Speech Coalition, Justice Barrett referenced the famous (albeit not entirely accurate) legal quip that strict scrutiny is “strict in theory and fatal in fact.” The challengers (and the U.S. Department of Justice as amicus curiae) argued that, like COPA, H.B. 1181 is a content-based restriction against material that is protected for adults (by requiring age verification on websites that contain material that is obscene for minors), so Ashcroft II requires that H.B. 1181 be held to the highest level review.

Texas instead points to Ginsberg v. New York to argue that H.B. 1181 should only be evaluated under rational basis review. In Ginsberg, the Supreme Court upheld the conviction of an adult who sold “girlie magazines”—which were considered obscene for minors but not for adults—to a 16-year-old under rational review. The Ginsberg Court explained that the State could adjust the definition of obscenity for adults delineated in Miller to reflect the different “social realities” of minors, which H.B. 1181 did as well. Texas argues that online age verification is no different than when the New York law challenged in Ginsberg required the cashier in a physical store to check ID before selling material that was obscene to minors. The State maintains that just checking the content of speech to differentiate between protected speech and unprotected speech does not turn the law into a “content-based restriction”—but to whatever extent H.B. 1181 discriminates based on content, it does so no more than the law which Ginsberg evaluated at the lowest level of scrutiny.

Texas contends that despite Sable, Reno, Ashcroft II, and other cases that appeared to evaluate child obscenity laws at strict scrutiny, Ginsberg remains good law. The Fifth Circuit noted that in 2011, the Supreme Court differentiated its decision in Brown v. Entertainment Merchants from Ginsberg (indicating that the Court recognized Ginsberg as otherwise binding), and various justices have cited Ginsberg in different contexts even following Reno and Ashcroft II.

In response, the Free Speech Coalition makes three primary arguments why Ginsberg should not dictate a rational basis standard of review for H.B. 1181. First, the challengers argue that Ginsberg only discussed the rights of the minor to buy the obscene-for-minors material, but that case did not address whether the adult’s right to disseminate the magazines had been burdened. Second, they argue that in the physical-world scenario in Ginsberg, only younger adults who appear close to the age of majority would be required to show age verification, but online verification burdens all adults. Finally, partially dissenting from the Fifth Circuit opinion to uphold the law, Judge Patrick Higginbotham argued that the Supreme Court applied strict scrutiny in Sable, Reno, and Ashcroft II even after Ginsberg, which indicates that even if Ginsberg has not been formally overruled, it also does not dictate the proper standard at which to evaluate laws akin to H.B. 1181.

B. Does H.B. 1181 Pass Strict Scrutiny if Held to that Standard?

Acknowledging the government’s compelling interest to protect minors from viewing obscenity, the challengers implicitly concede that the Texas law passes rational basis review. However, the State argues—like the federal government in every case before Ashcroft II—that if the Court does hold H.B. 1181 to strict scrutiny, the law nevertheless survives. The Free Speech Coalition obviously disagrees with that contention.

As mentioned, the plaintiffs note the similarity between COPA and H.B. 1181 to argue that the latter violates strict scrutiny just as the former did. Ashcroft II held that COPA was not “narrowly tailored” because filtering presented a less restrictive means to accomplish the same goal and could in fact have been more effective. In large part, the Ashcroft II held that COPA was not narrowly tailored because the age verification prescribed by the law—which only applied to content posted to the “Web” from the United States—was underinclusive (by not restricting content from overseas or not on the internet) in a way that filtering software on the entire computer could prevent. Judge Higginbotham noted that the same weakness plagues H.B. 1181, which only requires websites to verify the age of their viewers if more than a third of their content is obscene to minors. Adding an additional concern, the District Court maintained that this underinclusivity—for example, by not including search engines or social media websites that also contain obscene material—constitutes “a red flag that [Texas] pursues forbidden viewpoint discrimination under false auspices.”

In response, Texas asserts that the past twenty years have shown that filtering is not effective, and if the State has the ability to prevent minors from accessing obscenity, it must also have a constitutional way of doing so. Additionally, Texas defended that it can focus on its most pressing concerns without having to regulate the entire internet.

Siding with Texas, the Fifth Circuit Court of Appeals determined that Ginsberg remains binding law. Judge Jerry Smith, writing to vacate the injunction of the age verification requirement in the circuit court, concluded that the Ashcroft II Court assumed that strict scrutiny would apply, but it did not actually decide that holding: the government did not contest the circuit court’s decision to hold COPA to strict scrutiny, so the Court did not have to address it. He found it notable that while Reno made sure to differentiate the CDA from Ginsberg and other precedents (such as FCC v. Pacifica Foundation and Renton v. Playtime Theatres, Inc.) and that would have pointed towards lower scrutiny, Ashcroft II “contains startling omissions” by not addressing those cases.  

Alternatively, Ginsberg and Ashcroft II can be differentiated due to the differences between COPA and H.B. 1181 or the technological reality of 2025 compared to 2004. On more technical grounds, Texas argues that laws imposing only civil penalties, such as H.B. 1181, should be held to lower standards than criminal statutes like COPA. More broadly, Justice Breyer dissented in Ashcroft II because he thought that age verification requirements—even in 2004—posed only “a modest burden” on adults that did not violate their constitutional rights. Texas argues that technological advancements have further reduced the restriction imposed by age verification: H.B. 1181 allows a number of different methods for the website hosts to verify the viewers’ ages, including government ID and third-party providers that use artificial intelligence, that are ubiquitous in the online world for less-embarrassing purposes (such as sports betting or alcohol). The law does not allow the providers to retain the individual’s information—eliminating the risk of a leak that the District Court claimed could function as a “chilling effect”—which would not have been feasible when COPA was passed.

Aaron Nielson, the Texas Solicitor General representing the state at oral arguments, reconciled Ginsberg and Ashcroft by explaining that simple verification akin to the New York law challenged in Ginsberg (i.e. showing ID to a cashier) would follow that case’s rational-basis test, while a law that imposes a greater burden must withstand Ashcroft II’s strict scrutiny. (In her concurrence in Reno, Justice O’Connor wrote that a law may be valid if it “does not unduly restrict adults’ access” to protected content.) From that perspective, online age verification—especially given its commonplace nature in the present-day online commerce and increased privacy protections—would seem little different than “a bouncer [who] checks a person’s driver’s license before admitting him to a nightclub.”

IV. HOW ELSE TEXAS COULD HAVE WON

Court watchers expect that the Supreme Court will uphold H.B. 1181, whether on rational-basis grounds or because it survives strict scrutiny. However, even if the Court strikes down the law (or allows it to stand in a way that prevents similar laws from being enacted in other states), governments have other, more straightforward ways to accomplish nearly everything that H.B. 1181 seeks to accomplish—or perhaps even more—while standing firmly within established precedent and First Amendment principles.

Free Speech Coalition v. Paxton poses a complicated case because H.B. 1181 seeks to restrict minors from all material that is obscene to minors, even if that content is protected for adults. Even putting aside parsing the standards of review in Ginsberg, Ashcroft II, and other cases, the discussion about laws (such as H.B. 1181) targeted at content that is obscene for minors can get bogged down in minutiae about whether generally-unobjectionable content that is nevertheless obscene for a young child might require age verification and thereby burden adults, or exactly which forms of age verification can be used that will or will not have the opportunity to store the data even if state law does not require it. If Texas instead had only restricted access to material that is obscene even for adults, however, none of this would be a question: Obscenity is categorically unprotected by the First Amendment.

In theory, a state could ban genuine adult-level obscenity outright, for adults as well as children. Even without political support for such a drastic measure—although 68% of Americans support banning pornography for minors, only 28% favor a complete ban even for adults—a state would have full leeway to age-gate content from children that is obscene even for adults without implicating the free speech rights of adults because, again, adults do not have a right to access that material at all, anyway.

The downside to this approach, of course, is that minors would be able to access more relatively-obscene content, namely that which courts have upheld as obscene to minors but perhaps only indecent to adults. That said, that sliver of content might not be very large, and besides, does not compose what policymakers are most immediately concerned about. Arguing that the Free Speech Coalition’s facial challenge should fail even if the law might be unconstitutional as applied to certain content, Texas noted that much of the content contained on the challengers’ websites is obscene even for adults. Dissenting in Ashcroft II, Justice Breyer also argued that very little content would fall in the gap that is protected for adults but not for minors. To the extent that some material exists, the Circuit Court dissent pointed to popular works such as Game of Thrones, The Color Purple, or The Girl with the Dragon Tattoo, and Justice O’Connor highlighted “prison rape or nude art” which “may have some redeeming educational value for adults.” Given the crisis that exists regarding minors’ usage of pornography—a majority of children have been exposed to pornography by age 13, a number which rises to nearly to two-thirds by age 17, and more than half of those teenagers have been exposed to violent pornography, all with significant negative effects—it seems likely that Texas and other states would have no issue punting regulatory authority over anatomy textbooks or TV series akin to one nominated for more than 150 Emmy Awards.

However, this approach can only work because obscenity is categorically not protected by the First Amendment and could be banned entirely if the political support was there. Hardcore pornography can be restricted by the government under any standard, and commercial speech generally receives fewer protections, especially when targeted towards “against a background of commercial exploitation of erotica solely for the sake of their prurient appeal.”

CONCLUSION

While discussing what protections pornography might receive under the First Amendment, it is worthwhile to briefly consider the purpose of free speech in the American political tradition and structure. 

In addition to appealing to the “prurient interest,” Miller defined unprotected materials as those “which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Between Roth, Memoirs, Miller, this third prong had been heavily contested: Must the content be “utterly without redeeming social value” to be banned, or can the government even prohibit “utterances… of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”? Miller came out somewhere in the middle. 

However, given the historical purpose of free speech, even Miller might take a too expansive view as to what the First Amendment protects. Summarizing a 1774 letter sent by the Continental Congress to the inhabitants of Quebec, the Roth Court described, “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Sure, the Roth Court recognized that “sex… is one of the vital problems of human interest and public concern,” and as such, “sex and obscenity are not synonymous,” but the Court also emphasized, “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” A discussion about sex in the context of “matters of public concern”—such as abortion laws, public nudity, or even what obscene content should be restricted—is certainly within the core scope of the First Amendment, even if the content might be graphic for polite company. Exploitive commercial pornography has “no essential part of any exposition of ideas.” But even beyond that, the Miller test is overbroad when it protects works of “serious literary [or] artistic” for their own sake rather than any social or political commentary that they contribute to the public discourse. 

In Barnette v. West Virginia, the Supreme Court heard the complaint of Jehovah’s Witnesses who objected to reciting the Pledge of Allegiance in school. In his majority opinion, Justice Robert Jackson — two years before he would be appointed the Chief Prosecutor for the Nuremberg trials — wrote one of the most famous paeans to free speech in the American legal canon, declaring:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

The “fixed star” that Justice Jackson described was not radical exhibitionism, or “even” just self-expressive creativity; the freedom of conscience, widely understood, touches the core of the human self: politics, religion, and the ability to speak freely about the public affairs. On the other hand, there are no orthodoxies to be protected contained in sexually-explicit anime, or even in Memoirs of a Woman of Pleasure—contested not only in the eponymous 1966 case, but also the subject of one of the earliest obscenity prosecutions in United States history in 1821. There are certainly no political or social orthodoxies on OnlyFans, and the Supreme Court need not bury its head in rigid formalism to grant that content constitutional protection anyway.