Supreme Court erodes online privacy and free speech in age verification ruling

The Supreme Court recently upheld as constitutional a Texas law that requires any user who attempts to visit a site where at least one-third of the material is labeled “sexually explicit” and “harmful to minors” to prove they are 18 years old. This ruling in Free Speech Coalition v. Paxton marks a shift in how courts approach online age-verification laws targeting sexual content. The decision is already emboldening lawmakers in other states to pursue broader restrictions under the banner of child protection, but it remains to be seen how far courts will let that logic stretch.

For three decades, laws that regulated online content, especially sexual content, were tested under the “strict scrutiny” standard. Strict scrutiny is the highest standard of judicial review, used by courts to evaluate whether laws or government actions infringe on fundamental rights. This standard requires the government to prove these laws serve a compelling interest and are narrowly tailored to achieve that interest.

In Free Speech Coalition v. Paxton, the Supreme Court’s majority concluded that intermediate scrutiny should be the standard here, not strict scrutiny. Under intermediate scrutiny, the government only needs to prove it has a substantial interest to address a harm and the law is reasonably tailored to that aim. Writing for the majority, Justice Clarence Thomas analogized the requirement to show ID for alcohol or tobacco purchases, which are longstanding and widely accepted practices. He recasts Texas’s law as regulating “unprotected conduct” (letting minors access material deemed obscene for minors) and said the new identification (ID) requirement only incidentally burdens adults.

This decision marks a significant departure from the strong First Amendment protections for online speech established in two major cases: Reno v. ACLU (1997) and Ashcroft v. Free Speech Coalition (2004).

In Reno, the Supreme Court struck down the Communications Decency Act of 1996’s anti-indecency provisions as unconstitutionally vague and overbroad, holding that online speech is entitled to the same strict scrutiny as print, and that blanket bans on “indecent” or “patently offensive” content to protect minors could not justify sweeping limits on lawful adult speech.

Similarly, in Ashcroft, the Supreme Court repeatedly invalidated the Child Online Protection Act of 1998, emphasizing that even regulations aimed at restricting “harmful to minors” material could not limit adults’ access to legal speech if less restrictive alternatives, such as user controls or filtering, were available.

Under this new precedent, states now have more leeway to regulate online content under the guise of child safety, signaling that well-crafted age verification mandates for obscene or explicit material need not meet the previously rigorous First Amendment bar set by Reno and Ashcroft, and potentially paving the way for further state-level digital content regulation.

The complications of NetChoice v. Carr (2025)

Just one day before the Supreme Court issued its decision, the U.S. District Court for the Northern District of Georgia blocked enforcement of a much broader law: Georgia Senate Bill 351, also known as the “Protecting Georgia’s Children on Social Media Act of 2024.” The law would have required social media platforms to verify the age of all account holders, obtain parental consent for minors, and ban targeted advertising to minors based on personal data. In her ruling in NetChoice v. Carr, Judge Amy Totenberg found that the law would restrict teens’ access to online forums, infringe on anonymous speech, and interfere with platforms’ rights to communicate.

“The Court does not doubt the dangers posed by young people’s overwhelming exposure to social media,” Judge Totenberg wrote. “But, in its effort to aid parents, the Act’s solution creates serious obstacles for all Georgians, including teenagers, to engage in protected speech activities and would highly likely be unconstitutional.”

Following the release of the Supreme Court ruling, Georgia state Sen. Jason Anavitarte (R-Dallas), the author of Senate BIll 351, stated that “Based on Friday’s ruling at The Supreme Court, Judge Totenberg should be left with no choice but to allow SB 351 to go into effect … in its entirety.”

Georgia’s law, however, is much broader than Texas’ law and regulates all speech on social media platforms, not just obscene content, so the Supreme Court’s Texas decision does not automatically validate Georgia’s approach. This ruling is likely to be appealed, thus requiring a higher court to eventually clarify under what exact circumstances a state can require age verification from websites. 

The District Court applied the strict scrutiny standard in this case, which was the precedent prior to the Supreme Court ruling. However, the Supreme Court’s decision the very next day established that age verification laws targeting access to obscene or sexually explicit material can be upheld under intermediate scrutiny, as long as they are narrowly focused and only incidentally burden adult speech. This means that if a law is specifically designed to prevent minors from accessing pornography and does not substantially restrict adults’ access to protected speech, it is more likely to be considered constitutional. 

However, it is also possible that states will attempt to word every proposed age verification bill with broad definitions of what is “obscene,” “sexually explicit,” or “harmful to minors.” In doing so, states will try to force large social media sites that are not hosting pornography to nevertheless verify the ages of all its users. This may chill adults’ ability to access websites of their choosing while remaining anonymous, a feature that is still protected by the First Amendment so long as the platform allows anonymous participation.

Privacy concerns persist

Justice Clarence Thomas’ comparison between checking an ID at a liquor store and digital age verification obscures a profound difference between offline and online age verification. Buying alcohol at a liquor store does not create a permanent record of your interests and habits. Online verification, however, may involve uploading a government ID, submitting biometric data, or verifying identity through third-party platforms.

As Reason Foundation explained in its amicus brief opposing the law, this sensitive information—detailing exactly who visits which sites, and when—can be stored indefinitely, commercially exploited, or exposed in data breaches. Without robust federal safeguards regulating the collection, storage, and use of this data, mandatory age verification not only compromises user anonymity but threatens to chill free expression online.

Furthermore, it is also questionable whether Texas’ age verification law will shield kids from harmful content. Similar age verification efforts have proven ineffective, as tech-savvy minors are able to circumvent restrictions using Virtual Private Networks (VPNs), borrowed credentials, or mirror websites, meaning the laws introduce serious privacy and speech burdens for adults without effectively achieving their stated goal of shielding minors from harmful content.

As states now have the authority to require age verification to block sexually explicit content to minors, it will be important to note if/when states try to encapsulate broad age verification requirements on any website they deem to have content harmful to minors.

It is highly likely in the coming years that the Supreme Court will have to clarify the exact line of what age verification requirements do not violate the First Amendment. It will be important to note if any of these age verification requirements actually keep children safe online or if they merely satisfy a political urge to appear protective while exposing millions of users to new privacy and data-security risks.

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Source: https://reason.org/commentary/supreme-court-erodes-online-privacy-and-free-speech-in-age-verification-ruling/