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Free Speech Coalition v. Paxton
Free Speech Coalition v. Paxton
	Supreme Court of the United States
Full case name	Free Speech Coalition, Inc., et al. v. Ken Paxton, Attorney General of Texas
Docket no.	23-1122
Case history
Prior	Preliminary injunction granted, Free Speech Coalition v. Colmenero, No. 1:23-CV-917-DAE (W.D. Tex. August 31, 2023); Injunction vacated, Free Speech Coalition v. Paxton, 95 F.4th 263 (5th Cir. 2024); Stay denied, 601 U.S. ___, No. 23A925 (April 30, 2024);
Questions presented
	Whether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults' access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done.

Free Speech Coalition v. Paxton is a pending United States Supreme Court case about whether states may require Internet pornography websites to verify the age of viewers in order to prevent access by minors.

Background

Case background

In 2023, the Texas Legislature enacted House Bill 1181,^[1] a law requiring age-verification on websites with more than a third of its content "harmful to minors",^[2] by a broad bipartisan vote.^[1] The Free Speech Coalition, a trade association for the pornography and adult entertainment industry, sued to challenge the law.^[2] By the FSC's count, Texas was among 23 states that had adopted similar laws in 2023 or 2024.^[2]

The district court struck down the provision,^[1] but the United States Court of Appeals for the Fifth Circuit reversed that ruling and upheld the age-verification requirement.^[2] However, the Fifth Circuit affirmed the district court's decision to strike down another provision of H.B. 1181 that required the websites to post warnings about health dangers of pornography.^[2]

The majority opinion for the Fifth Circuit panel was by Judge Jerry Smith, who said that it was within the state's legitimate interest in preventing minors' access to pornography.^[1] Judge Patrick Higginbotham dissented, saying that the law infringed adults' protected speech and had chilling effects.^[1]

The Supreme Court declined to block the Texas law pending appeal.^[2]

Previous cases

Applying rational basis review, the Supreme Court upheld state laws banning the sale of pornography to minors in Ginsberg v. New York (1968), provided that it was "obscene as to minors" – even if it would not meet an ordinary legal test for obscenity as to adults.^[3]

In Ashcroft v. American Civil Liberties Union II (2004), the Supreme Court affirmed a preliminary injunction against the Child Online Protection Act, a federal law that required age verification for commercial websites hosting "material harmful to children". In a 5–4 decision written by Justice Kennedy, the court applied strict scrutiny and said that the government had not shown that voluntary use of filtering software by parents – a less restrictive alternative – was inadequate to meet the government's interest in protecting minors.^[3]