Free Speech Coalition, Inc. v. Paxton

606 U.S. 461

• Court: Supreme Court of the United States
• Decided: June 27, 2025
• Docket: 23-1122
• Status: Published

Opinion

PRELIMINARY PRINT

Volume 606 U. S. Part 2 Pages 461–521

OFFICIAL REPORTS OF

THE SUPREME COURT June 27, 2025

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. OCTOBER TERM, 2024 461

Syllabus

FREE SPEECH COALITION, INC., et al. v. PAXTON, ATTORNEY GENERAL OF TEXAS certiorari to the united states court of appeals for the fth circuit No. 23–1122. Argued January 15, 2025—Decided June 27, 2025 Texas, like many States, prohibits distributing sexually explicit content to children. In 2023, Texas enacted H. B. 1181, requiring certain commer- cial websites publishing sexually explicit content that is obscene to mi- nors to verify that visitors are 18 or older. Knowing violations subject covered entities to injunctions and civil penalties. Petitioners—representatives of the pornography industry—sued the Texas attorney general to enjoin enforcement of H. B. 1181 as facially unconstitutional under the First Amendment's Free Speech Clause. They alleged that adults have a right to access the covered speech, and that the statute impermissibly hinders them. The Fifth Circuit held that an injunction was not warranted because petitioners were unlikely to succeed on their First Amendment claim. The court viewed H. B. 1181 as a “regulatio[n] of the distribution to minors of materials obscene for minors.” 95 F. 4th 263, 269, 271. It therefore determined that the law is not subject to any heightened scrutiny under the First Amendment. Held: H. B. 1181 triggers, and survives, review under intermediate scru- tiny because it only incidentally burdens the protected speech of adults. Pp. 470–499. (a) H. B. 1181 is subject to intermediate scrutiny. Pp. 470–495. (1) To determine whether a law that regulates speech violates the First Amendment, the Court considers both the nature of the burden imposed by the law and the nature of the speech at issue. Laws that target protected speech “based on its communicative content” “are pre- sumptively unconstitutional and may be justifed only if ” they satisfy strict scrutiny. Reed v. Town of Gilbert, 576 U. S. 155, 163. Laws that only incidentally burden protected speech are subject to intermediate scrutiny. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642. And laws that restrict only unprotected speech, such as obscenity, re- ceive rational-basis review. United States v. Stevens, 559 U. S. 460, 468. History, tradition, and precedent establish that sexual content that is obscene to minors but not to adults is protected in part and unprotected in part. States may prevent minors from accessing such content, Gins- 462 FREE SPEECH COALITION, INC. v. PAXTON

berg v. New York, 390 U. S. 629, 637–638, but may not prevent adults from doing the same, Butler v. Michigan, 352 U. S. 380, 383. Pp. 470–477. (2) H. B. 1181 has only an incidental effect on protected speech, and is therefore subject to intermediate scrutiny. The First Amendment leaves undisturbed States' traditional power to prevent minors from ac- cessing speech that is obscene from their perspective. That power in- cludes the power to require proof of age before an individual can access such speech. It follows that no person—adult or child—has a First Amendment right to access such speech without frst submitting proof of age. The power to verify age is part of the power to prevent children from accessing speech that is obscene to them. Where the Constitution reserves a power to the States, that power includes “the ordinary and appropriate means” of exercising it. 1 J. Story, Commentaries on the Constitution of the United States § 430, pp. 412–413. Requiring proof of age is an ordinary and appropriate means of enforcing an age-based limit on obscenity to minors. Age verifcation is common when laws draw age-based lines, e. g., obtaining alcohol, a frearm, or a driver's license. Obscenity is no exception. Most States require age verifca- tion for in-person purchases of sexual material, and petitioners concede that in-person requirements of this kind are “traditional” and “almost surely” constitutional. Tr. of Oral Arg. 17. And as a practical matter, age-verifcation is necessary for an effective prohibition on minors ac- cessing age-inappropriate sexual content, especially on the internet. Because H. B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate adults' protected speech. Adults have the right to access speech obscene only to minors, see Butler, 352 U. S., at 383–384, and submitting to age verifcation bur- dens the exercise of that right. But adults have no First Amendment right to avoid age verifcation. Any burden on adults is therefore inci- dental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court's precedents. Pp. 477–483. (3) Applying the more demanding standard of strict scrutiny would call into question all age-verifcation requirements, even longstanding in-person requirements. Although petitioners insist that traditional in- person requirements would survive strict scrutiny, the Court cannot share their confdence. Strict scrutiny is designed to enforce the First Amendment's prohibition on content-based laws, and it succeeds in that purpose only if, as a practical matter, it is almost always fatal in fact. Strict scrutiny is not the appropriate standard for laws that are tradi- tional and widely accepted as legitimate. Pp. 483–485. Cite as: 606 U. S. 461 (2025) 463

(4) Precedent does not call for the application of strict scrutiny. The Court's decisions applying strict scrutiny in this context all involved laws that banned both minors and adults from accessing speech that was at most obscene only to minors. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 118, 126; United States v. Playboy En- tertainment Group, Inc., 529 U. S. 803, 808, 811, 814; Reno v. American Civil Liberties Union, 521 U. S. 844, 868, 876; Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 665. The Court has never before considered whether the more modest burden of an age-verifcation re- quirement triggers strict scrutiny. Pp. 485–491. (5) Texas contends that only rational-basis review applies. This position fails to account for the incidental burden that age verifcation necessarily has on an adult's First Amendment right to access speech obscene only to minors. Although deferential, intermediate scrutiny plays an important role in ensuring that legislatures do not use ostensi- bly legitimate purposes to disguise efforts to suppress fundamental rights. P. 495. (b) H. B. 1181 survives intermediate scrutiny because it “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189. Pp. 495–499. (1) H. B. 1181 furthers Texas's important interest in shielding chil- dren from sexual content and is adequately tailored to that interest. States have long used age-verifcation requirements to reconcile their interest in protecting children from sexual material with adults' right to avail themselves of such material. H. B. 1181 simply adapts this traditional approach to the digital age. The specifc verifcation meth- ods that H. B. 1181 permits—government-issued identification and transactional data—are also plainly legitimate. Both are established methods of verifying age already in use by many pornographic websites and other industries with age-restricted services. Pp. 496–497. (2) Petitioners' counterarguments are unpersuasive. Petitioners object that other means of protecting children are more effective and that children are likely to encounter sexually explicit content on other websites subject to H. B. 1181's requirements. But intermediate scru- tiny does not require States to adopt the least restrictive means of pur- suing their interests, Ward v. Rock Against Racism, 491 U. S. 781, 800, or avoid all underinclusiveness, TikTok Inc. v. Garland, 604 U. S. 56, 76. Pp. 497–499. 95 F. 4th 263, affrmed. 464 FREE SPEECH COALITION, INC. v. PAXTON

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kagan, J., fled a dissenting opinion, in which Sotomayor and Jackson, JJ., joined, post, p. 500.

Derek L. Shaffer argued the cause for petitioners. With him on the briefs were Christopher G. Michel, Rachel G. Frank, Michael T. Zeller, Vera Eidelman, Brian Hauss, Ben Wizner, Cecillia D. Wang, and David D. Cole. Principal Deputy Solicitor General Fletcher argued the cause for the United States as amicus curiae supporting va- catur. With him on the brief were Solicitor General Prelo- gar, Principal Deputy Assistant Attorney General Boynton, Kevin J. Barber, Charles W. Scarborough, and Steven H. Hazel. Aaron L. Nielson, Solicitor General of Texas, argued the cause for respondent. With him on the briefs were Ken Paxton, Attorney General, pro se, Lanora C. Pettit, Princi- pal Deputy Solicitor General, Beth Klusmann, Assistant Solicitor General, Eric Abels and John Ramsey, Assistant Attorneys General, and Brent Webster, First Assistant At- torney General.*

*Briefs of amici curiae urging reversal were fled for American Book- sellers for Free Expression et al. by Kenneth A. Bamberger; for the Cato Institute by Thomas A. Berry and Brent Skorup; for the Electronic Fron- tier Foundation et al. by Aaron Mackey, Elizabeth Femia, David Greene, Corbin K. Barthold, Lawrence G. Walters, Corey D. Silverstein, and Kevin S. Toll; for the Institute for Justice by Paul M. Sherman and Anya Bid- well; for the International Centre for Missing and Exploited Children by Amer S. Ahmed, Jillian London, and Daniel R. Adler; for Internet Law Professors by Ronan P. Doherty; and for the National Coalition Against Censorship et al. by Lisa S. Blatt, Charles L. McCloud, and Lee Rowland. Alan Butler fled a brief for the Electronic Privacy Information Center as amicus curiae urging vacatur. Briefs of amici curiae urging affrmance were fled for the State of Ohio et al. by Dave Yost, Attorney General of Ohio, T. Elliot Gaiser, Solicitor General, and Katie Rose Talley, Deputy Solicitor General, by Theodore E. Rokita, Attorney General of Indiana, James A. Barta, Solicitor General, and Jenna M. Lorence, Deputy Solicitor General, and by the Attorneys Cite as: 606 U. S. 461 (2025) 465

Opinion of the Court

Justice Thomas delivered the opinion of the Court. Texas, like many States, prohibits the distribution of sexu- ally explicit content to children. Tex. Penal Code Ann.

General for their respective States as follows: Steve Marshall of Alabama, Treg R. Taylor of Alaska, Tim Griffn of Arkansas, Ashley Moody of Flor- ida, Christopher M. Carr of Georgia, Raúl R. Labrador of Idaho, Brenna Bird of Iowa, Kris Kobach of Kansas, Russell Coleman of Kentucky, Liz Murrill of Louisiana, Lynn Fitch of Mississippi, Andrew Bailey of Mis- souri, Austin Knudsen of Montana, Michael T. Hilgers of Nebraska, Gent- ner Drummond of Oklahoma, Drew H. Wrigley of North Dakota, Alan Wilson of South Carolina, Marty Jackley of South Dakota, Sean D. Reyes of Utah, Jason Miyares of Virginia, Patrick Morrisey of West Virginia, and Bridget Hill of Wyoming; for the Age Verifcation Providers Associa- tion by Aaron M. Streett and Brenton H. Cooper; for the Alliance Defend- ing Freedom by James A. Campbell, John J. Bursch, and Cody S. Barnett; for the American Principles Project by Theodore M. Cooperstein and Craig L. Parshall; for Citizens Defending Freedom by Erin Elizabeth Mersino and Robert J. Muise; for the Council on Pornography Reform et al. by William J. Olson, Jeremiah L. Morgan, J. Mark Brewer, and Patrick M. McSweeney; for Major Religious Organizations by Gene C. Schaerr, H. Christopher Bartolomucci, Hannah C. Smith, Thomas R. Lee, and R. Shawn Gunnarson; for the Manhattan Institute for Policy Re- search et al. by Jonathan Berry, James R. Conde, Ilya Shapiro, and John Ketcham; for the Matthew XVIII Group et al. by Mary E. McAlister and Vernadette R. Broyles; for Members of the Texas Senate by Peter A. Gen- tala, Benjamin W. Bull, and Christen M. Price; for the Minnesota Family Council et al. by Renee K. Carlson and Brittany M. Jones; for Scholars of the First Amendment by D. Adam Candeub; for Scholars on the Neurolog- ical Effects of Pornography on Adolescents by John C. Sullivan; for State Legislators et al. by Trey Dellinger; for Them Before Us by Benjamin M. Flowers; for the Women's Liberation Front by Elspeth B. Cypher; for Sen. Mike Lee et al. by William P. Barr, Patrick F. Philbin, and Chase Har- rington; for Clare Morell et al. by Eric N. Kniffn and Rachel N. Mor- rison; for Heidi Olson by Jeffrey A. Wald; and for Laurie Schlegel by Scott L. Sternberg. Briefs of amici curiae were fled for the American Foundation for Ad- diction Research et al. by Daniel R. Suhr; for Atsign, Inc., by Derek T. Ho and Matthew D. Reade; for the Center for Democracy & Technology et al. by Andrew S. Bruns and Amos J. B. Espeland; for the Ethics and Religious Liberty Commission et al. by S. Chad Meredith and Trevor Pir- ouz Kehrer; for Exodus Cry et al. by Aaron T. Martin; for First Amend- 466 FREE SPEECH COALITION, INC. v. PAXTON

§ 43.24(b) (West 2016). But, although that prohibition may be effective against brick-and-mortar stores, it has proved challenging to enforce against online content. In an effort to address this problem, Texas enacted H. B. 1181, Tex. Civ. Prac. & Rem. Code Ann. § 129B.001 et seq. (West Cum. Supp. 2024), which requires certain commercial websites that pub- lish sexually explicit content to verify the ages of their visi- tors. This requirement furthers the lawful end of prevent- ing children from accessing sexually explicit content. But, it also burdens adult visitors of these websites, who all agree have a First Amendment right to access at least some of the content that the websites publish. We granted certiorari to decide whether these burdens likely render H. B. 1181 un- constitutional under the Free Speech Clause of the First Amendment. We hold that they do not. The power to re- quire age verifcation is within a State's authority to prevent children from accessing sexually explicit content. H. B. 1181 is a constitutionally permissible exercise of that authority. I A In 2023, Texas enacted H. B. 1181, a law requiring porno- graphic websites to verify that their users are adults. H. B. 1181's sponsors proposed the law to address their concern that the internet makes too accessible to minors “hardcore pornographic content and videos,” many of which depict “sexual violence, incest, physical aggression, sexual assault, non-consent, and teens.” App. 254–255. According to the sponsors, such pornography is “addictive,” has harmful “de-

ment Scholars by Jennifer Safstrom; for the Foundation for Individual Rights and Expression et al. by Robert Corn-Revere and Ronald G. Lon- don; for Jaco Booyens Ministries (JBM) et al. by Lawrence B. Shallcross; for the Justice Defense Fund by Michael S. Overing, Edward C. Wilde, and Itzel Morales; for the Reward Foundation by Joel Thayer; for Social Science Scholars by Jonathan Berry and James R. Conde; and for Yoti Ltd. by James R. Marsh. Cite as: 606 U. S. 461 (2025) 467

velopmental effects on the brain,” and leads to “risky sexual behaviors.” Ibid. The Texas Legislature passed the Act with only a single opposing vote, and the Governor signed it into law. The statute applies to any “commercial entity that know- ingly and intentionally publishes or distributes material on an Internet website, . . . more than one-third of which is sexual material harmful to minors.” Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a). The statute defnes “ `[s]exual ma- terial harmful to minors' ” as material that: (1) “is designed to appeal to or pander to the prurient interest” when taken “as a whole and with respect to minors”; (2) describes, dis- plays, or depicts “in a manner patently offensive with respect to minors” various sex acts and portions of the human anat- omy, including depictions of “sexual intercourse, masturba- tion, sodomy, bestiality, oral copulation, fagellation, [and] ex- cretory functions”; and (3) “lacks serious literary, artistic, political, or scientifc value for minors.” § 129B.001(6). H. B. 1181 requires a covered entity to “use reasonable age verifcation methods . . . to verify that an individual attempt- ing to access the material is 18 years of age or older.” § 129B.002(a). To verify age, a covered entity must require visitors to “comply with a commercial age verifcation sys- tem” that uses “government-issued identifcation” or “a com- mercially reasonable method that relies on public or private transactional data.” § 129B.003(b)(2).1 The entity may per- form verifcation itself or through a third-party service. § 129B.003(b). 1 An entity may also verify age by requiring users to “provide digital identifcation,” Tex. Civ. Prac. & Rem. Code Ann. § 129B.003(b)(1), which is defned as “information stored on a digital network that may be accessed by a commercial entity and that serves as proof of the identity of an indi- vidual,” § 129B.003(a). The State concedes that “Texas does not yet have a state issued digital identifcation card or app.” App. 189. Petitioners maintain that no other identifcation could qualify as “digital ID” under this defnition. Tr. of Oral Arg. 36–37. We assume without deciding that petitioners are correct. 468 FREE SPEECH COALITION, INC. v. PAXTON

If a commercial entity knowingly violates H. B. 1181, the Texas attorney general may sue to enjoin the violation. § 129B.006(a). The attorney general may also recover a civil penalty of up to $10,000 per day that the website is noncom- pliant, as well as an additional penalty of up to $250,000 if any minors access covered sexual material as a result of the violation. § 129B.006(b). H. B. 1181 is not the only law of its kind. At least 21 other States have imposed materially similar age-verifcation requirements to access sexual material that is harmful to minors online.2 B Soon after Texas enacted H. B. 1181, a trade association for the pornography industry, a group of companies that op- erate pornographic websites, and a pornography performer sued the Texas attorney general. These plaintiffs, petition- ers here, sought to enjoin enforcement of the statute as fa- cially unconstitutional under the Free Speech Clause of the First Amendment. They alleged that adults have a right to

2 See Ala. Code § 8–19G–3(a) (Cum. Supp. 2024); 2025 Ariz. Sess. Laws ch. 193 (to be codifed at Ariz. Rev. Stat. Ann. § 18–701(A)); Ark. Code Ann. § 4–88–1304(a) (2023); 2024 Fla. Laws ch. 42, § 2 (to be codifed at Fla. Stat. § 501.1737(2)); 2024 Ga. Laws p. 316 (to be codifed at Ga. Code Ann. § 39–5–5(b)); Idaho Code Ann. § 6–3803(1) (Cum. Supp. 2024); Ind. Code § 24–4–23–10 (Cum. Supp. 2024); 2024 Kan. Sess. Laws p. 451 (to be codi- fed at Kan. Stat. Ann. § 50–6146(a)); Ky. Rev. Stat. Ann. § 436.002(1) (West Cum. Supp. 2024); La. Rev. Stat. Ann. § 51:2121(A)(1) (West 2025); Miss. Code Ann. § 11–77–5(1) (Cum. Supp. 2024); Mont. Code Ann. § 30–14–159(1) (2023); Neb. Rev. Stat. § 87–1003(1) (2024); N. C. Gen. Stat. Ann. § 66–501(a) (Supp. 2024); H. B. 1561, 69th Leg. Assem., Reg. Sess., § 1 (N. D. 2025) (to be codifed at N. D. Cent. Code Ann. § 51–07(2)); S. C. Code Ann. § 37–1– 310(C)(1) (Cum. Supp. 2024); H. B. 1053, 100th Leg. Sess., § 4 (S. D. 2025) (to be codifed at S. D. Codifed Laws ch. 22–24); Tenn. Code Ann. § 39– 17–912(c) (Supp. 2024); Utah Code § 78B–3–1002(1) (Supp. 2024); Va. Code Ann. § 8.01–40.5(B) (2024); 2025 Wyo. Sess. Laws ch. 139, § 1 (to be codifed at Wyo. Stat. Ann. § 14–3–502(a)). Cite as: 606 U. S. 461 (2025) 469

access the speech covered by H. B. 1181, and that the statute impermissibly hinders them from doing so. The District Court granted petitioners a preliminary in- junction after concluding that they were likely to succeed on their claim. The court held that because H. B. 1181 “re- stricts access to speech” that is constitutionally protected for adults “based on the material's content,” it is subject to “strict scrutiny”—the onerous standard of scrutiny applica- ble to direct invasions of First Amendment rights. Free Speech Coalition, Inc. v. Colmenero, 689 F. Supp. 3d 373, 391 (WD Tex. 2023). Under that standard, the law would be constitutional only if Texas could show that it “(1) serve[s] a compelling governmental interest, (2) [is] narrowly tailored to achieve it, and (3) [is] the least restrictive means of ad- vancing it.” Id., at 392. The District Court acknowledged Texas's compelling interest in preventing “a minor's access to pornography.” Ibid. But, it found that Texas had failed to “show that H.B. 1181 is narrowly tailored and the least restrictive means of advancing that interest.” Id., at 393. In the District Court's opinion, for example, encouraging parents to install content-fltering software on their chil- dren's devices would be a less restrictive means of accomp- lishing the State's objective. Id., at 401–404. The U. S. Court of Appeals for the Fifth Circuit vacated the injunction, holding that petitioners were unlikely to suc- ceed on the merits. The Fifth Circuit viewed H. B. 1181 as a “regulatio[n] of the distribution to minors of materials obscene for minors,” which only incidentally implicates “the privacy of those adults” seeking to access the regulated con- tent. 95 F. 4th 263, 269, 271 (2024). And, because minors have no First Amendment right to access such materials, the court held that the law was “subject only to rational-basis review”—the exceedingly deferential standard applicable to laws that do not implicate fundamental rights. Id., at 269. Applying that standard, the court concluded that H. B. 1181 470 FREE SPEECH COALITION, INC. v. PAXTON

survived petitioners' challenge because its “age-verifcation requirement is rationally related to the government's legiti- mate interest in preventing minors' access to pornography.” Id., at 267. Judge Higginbotham dissented in relevant part. Like the District Court, he would have applied strict scrutiny and found that Texas had failed to meet its burden under that standard. Id., at 299, 303–304 (opinion dissenting in part and concurring in part). Petitioners sought a stay of the Fifth Circuit's judgment, which this Court denied. 601 U. S. 1172 (2024). We granted certiorari to determine whether H. B. 1181's agever- ifcation requirement is likely constitutional on its face. 603 U. S. 904 (2024). II To determine which standard of First Amendment scru- tiny applies to Texas's age-verifcation law, we must frst re- view some background principles about the First Amend- ment. Specifcally, we must focus on what the First Amendment generally protects, the extent to which it per- mits States to restrict minors' access to sexually explicit speech, and how this Court has addressed earlier laws that aimed to prevent children from viewing sexually explicit speech online. A The First Amendment, which applies to the States through the Fourteenth Amendment, prohibits laws “abridg- ing the freedom of speech.” As “a general matter,” this pro- vision “means that government has no power to restrict ex- pression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). But, this principle “is not absolute.” Ibid. To determine whether a law that regulates speech violates the First Amendment, we must consider both the nature of Cite as: 606 U. S. 461 (2025) 471

the burden imposed by the law and the nature of the speech at issue. Our precedents distinguish between two types of restrictions on protected speech: content-based laws and content-neutral laws. “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justifed only if ” they satisfy strict scrutiny. Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). That standard requires that a law be “the least restrictive means of achieving a compelling state interest.” McCullen v. Coakley, 573 U. S. 464, 478 (2014). Content-neutral laws, on the other hand, “are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or view- points from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994) (citation omit- ted). Under that standard, a law will survive review “if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189 (1997) (Turner II). At the same time, not all speech is protected. “ `From 1791 to the present,' ” certain “ `historic and traditional cate- gories' ” of speech—such as “obscenity, defamation, fraud, in- citement, and speech integral to criminal conduct”—have been understood to fall outside the scope of the First Amend- ment. United States v. Stevens, 559 U. S. 460, 468 (2010) (citations omitted). States generally may prohibit speech of this kind without “rais[ing] any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572 (1942). Such prohibitions are subject only to rational-basis review, the minimum constitutional standard that all legislation must satisfy. See District of Columbia v. Heller, 554 U. S. 570, 628, n. 27 (2008). Under that standard, a law will be upheld “if there is any reasonably conceivable state of facts 472 FREE SPEECH COALITION, INC. v. PAXTON

that could provide a rational basis” for its enactment. FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993).

B History, tradition, and precedent recognize that States have two distinct powers to address obscenity: They may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children. By the 18th century, English common law recognized pub- lishing obscenity as an indictable offense. See Rex v. Wilkes, 4 Burr. 2527, 98 Eng. Rep. 327 (K. B. 1770); Rex v. Curl, 2 Strange 789, 93 Eng. Rep. 849 (K. B. 1727). So too did early American decisions. See Commonwealth v. Holmes, 17 Mass. 336, 336–337 (1821); Commonwealth v. Sharpless, 2 Serg. & Rawle 91, 100–102 (Pa. 1815); Knowles v. State, 3 Day 103, 108 (Conn. 1808). By the end of the Civil War, most States had prohibited obscenity by statute, and Congress had prohibited sending obscene materials by mail. See An Act Relating to the Postal Laws § 16, 13 Stat. 507; E. Hovey, Stamping Out Smut: The Enforcement of Obscen- ity Laws, 1872–1915, p. 36 (1998). And, from the late 19th century onward, this Court has consistently recognized the government's power to proscribe obscenity. See, e. g., Counterman v. Colorado, 600 U. S. 66, 77 (2023); Roth v. United States, 354 U. S. 476, 483 (1957); Rosen v. United States, 161 U. S. 29, 42–43 (1896). Our precedents hold that speech is obscene to the public at large—and thus proscribable—if (a) “the average person, applying contemporary community standards[,] would fnd that the work, taken as a whole, appeals to the prurient in- terest”; (b) “the work depicts or describes, in a patently offensive way, sexual conduct specifcally defned by the applicable state law”; and (c) “the work, taken as a whole, lacks serious literary, artistic, political, or scientifc value.” Cite as: 606 U. S. 461 (2025) 473

Miller v. California, 413 U. S. 15, 24 (1973) (internal quota- tion marks omitted). Our precedents refer to this standard as “the Miller test.” Miller does not defne the totality of States' power to reg- ulate sexually explicit speech, however. In addition to their general interest in protecting the public at large, States have a specifc interest in protecting children from sexually ex- plicit speech. The earliest obscenity decisions recognized that restricting obscenity served two distinct interests— curbing the “corruption of the public mind in general,” and protecting “the manners of youth in particular.” Sharpless, 2 Serge & Rawle, at 103 (opinion of Yeates, J.); see also Holmes, 17 Mass., at 336–337 (upholding an indictment for publishing an obscene book tending to “ `the manifest corrup- tion and subversion of the youth and other good citizens of [this] Commonwealth' ”). Similarly, many early obscenity statutes targeted for special regulation works “manifestly tending to the corruption of the morals of youth.” E. g., Me. Rev. Stat., ch. 160, § 19 (1840); Mass. Rev. Stat., ch. 130, § 10 (1836); Mich. Rev. Stat., Pt. 4, Tit. 1, ch. 8, § 10 (1838); 1838 Terr. of Wis. Stat. § 10, p. 366; Vt. Rev. Stat., ch. 99, § 10 (1840). This trend continued through the time of the Four- teenth Amendment's ratifcation, with States routinely en- forcing statutes that punished indecent publications on the ground that they corrupted “ `the morals of youth.' ” E. g., Fuller v. People, 92 Ill. 182, 184 (1879); Commonwealth v. Dejardin, 126 Mass. 46, 46–47 (1878); Barker v. Common- wealth, 19 Pa. 412, 413 (1852); State v. Hanson, 23 Tex. 233, 233–234 (1859). Consistent with this history, our precedents recognize that States can impose greater limits on children's access to sexu- ally explicit speech than they can on adults' access. When regulating adult access, a State must defne obscenity from the perspective of “the average” adult, Roth, 354 U. S., at 489, and so may not prohibit adults from accessing speech 474 FREE SPEECH COALITION, INC. v. PAXTON

that is inappropriate only for children, Butler v. Michigan, 352 U. S. 380, 383 (1957). Minors, however, have long been thought to be more susceptible to the harmful effects of sex- ually explicit content, and less able to appreciate the role it might play within a larger expressive work. See Ginsberg v. New York, 390 U. S. 629, 641–643 (1968); United States v. Bennett, 24 F. Cas. 1093, 1105 (No. 14,571) (CC SDNY 1879). They therefore possess “a more restricted right . . . to judge and determine for themselves what sex material they may read or see.” Ginsberg, 390 U. S., at 637. When regulating minors' access to sexual content, the State may broaden Miller's “defnition of obscenity” to cover that which is obscene from a child's perspective. Ginsberg, 390 U. S., at 638. To be more precise, a State may prevent minors from accessing works that (a) taken as a whole, and under contemporary community standards, appeal to the prurient interest of minors; (b) depict or describe specifcally defned sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artis- tic, political, or scientifc value for minors. See Miller, 413 U. S., at 24; Ginsberg, 390 U. S., at 635, 638.3 Restrictions of this kind trigger no heightened First Amendment scrutiny and are subject only to rational-basis review, even though they encompass speech that is “not obscene for adults.” Id., at 634, 639. In sum, two basic principles govern legislation aimed at shielding children from sexually explicit content. A State may not prohibit adults from accessing content that is ob- scene only to minors. Butler, 352 U. S., at 383. But, it may enact laws to prevent minors from accessing such content. Ginsberg, 390 U. S., at 637–638.

3 H. B. 1181 covers only depictions of activity that would qualify as “sex- ual conduct” in an adult obscenity statute. See Tex. Civ. Prac. & Rem. Code Ann. § 129B.001(6)(B). We therefore need not decide whether a statute addressing obscenity to minors can defne a broader range of activ- ity as “sexual conduct” than an adult obscenity statute. Cite as: 606 U. S. 461 (2025) 475

C This Court has applied these principles to regulations of internet-based speech on two prior occasions, both at the dawn of the internet age. First, in Reno v. American Civil Liberties Union, 521 U. S. 844 (1997), we addressed the con- stitutionality of the Communications Decency Act of 1996 (CDA), 110 Stat. 133. The CDA criminalized using the in- ternet to knowingly transmit “obscene or indecent mes- sages” to a minor, or to knowingly send or display “patently offensive messages in a manner that is available to” a minor. 521 U. S., at 859–860. It provided an affrmative defense to “those who restrict access to covered material by requiring certain designated forms of age proof.” Id., at 860–861. We held that the CDA violated the First Amendment be- cause it “effectively suppresses a large amount of speech that adults have a constitutional right to receive.” Id., at 874. The CDA's age-verifcation defense was illusory because, in many cases, “existing technology did not include any effec- tive method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.” Id., at 876.4 And, even as to 4 Elsewhere in the CDA, Congress recognized that content fltering was still an emerging technology and that companies attempting to use it faced serious risks. A year before the CDA's enactment, a New York court had held that an online service provider could be held liable as a publisher for defamatory posts by third-party users because the provider had “held it- self out as” “a family oriented computer network” that screened out inap- propriate content. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, *2 (Sup. Ct. N. Y., May 24, 1995). In response, the CDA added a new § 230 to the Communications Act of 1934. § 509, 110 Stat. 137–139 (codifed as amended at 47 U. S. C. § 230). Section 230 provides that computer service providers (1) shall not “be treated as the publisher or speaker of any information provided by” a third party, and (2) shall not “be held liable” for good-faith actions to restrict access to material that they consider to be “obscene, lewd, lascivious, flthy, excessively violent, harassing, or otherwise objectionable,” or to enable others (such as users) to restrict access to such material. § 230(c). Congress thereby aimed to spur the development and use of fltering technology so that parents could 476 FREE SPEECH COALITION, INC. v. PAXTON

minors, the CDA swept far beyond obscenity. Fairly read, the terms “ `indecent' ” and “ `patently offensive' ” encom- passed “large amounts of nonpornographic material with se- rious educational or other value.” Id., at 877. The Act was thus a “content-based restriction” of protected speech that could not survive strict scrutiny. Id., at 879. After Reno, Congress passed the Child Online Protection Act (COPA), 112 Stat. 2681–736, which we addressed in Ash- croft v. American Civil Liberties Union, 542 U. S. 656 (2004) (Ashcroft II). COPA criminalized posting “content that is `harmful to minors' ” online for “ `commercial purposes.' ” Id., at 661 (quoting 47 U. S. C. § 231(a)(1)). The Act defned such content as material that is obscene under the Miller test, as adjusted to minors. 542 U. S., at 661–662 (citing § 231(e)(6)). It also provided “an affrmative defense to those who employ specifed means to prevent minors from gaining access to the prohibited materials on their Web site,” such as requiring the use of a credit card or a digital certif- cate that verifes age. Id., at 662 (citing § 231(c)(1)). Soon after COPA's passage, a District Court preliminarily en- joined its enforcement, holding that the Act likely violated the First Amendment. Id., at 663. This Court held that the injunction was not an abuse of discretion. Id., at 664–665. The parties agreed that COPA was subject to strict scrutiny. So too did this Court, which briefy noted that this was so because COPA “ `effectively suppresses a large amount of speech that adults have a con- stitutional right to receive and to address to one another.' ”

prevent their children from accessing sexually explicit content online. See § 509, 110 Stat. 137 (title) (“Online Family Empowerment”); 47 U. S. C. § 230 (title) (“Protection for private blocking and screening of offensive material”); § 230(c) (title) (“Protection for `Good Samaritan' blocking and screening of offensive material”); 141 Cong. Rec. 22045 (1995) (remarks of Rep. Cox) (“We want to encourage” computer service providers “to help us control . . . what our children see” using fltering “technology” that “is very quickly becoming available”). Cite as: 606 U. S. 461 (2025) 477

Id., at 665 (quoting Reno, 521 U. S., at 874). We then focused our analysis on whether the Government had shown that it was likely to satisfy its burden under strict scrutiny. 542 U. S., at 666–670. We held that it had not, because the Gov- ernment had not ruled out that it could protect children just as well through the less restrictive means of encouraging parents to install blocking and fltering software on their computers. Ibid. We also noted that age verifcation was “only an affrmative defense,” meaning that even speakers adopting an approved verifcation method might be forced to “risk the perils of trial.” Id., at 670–671; accord, id., at 674 (Stevens, J., concurring). And, we leaned heavily on the abuse-of-discretion standard, observing that “substantial fac- tual disputes remain[ed] in the case,” and that “the factual record does not refect current technological reality” because it was “over fve years” old. Id., at 671 (majority opinion). For the past two decades, Ashcroft II has been our last word on the government's power to protect children from sexually explicit content online. During this period, the “technology of the Internet” has continued to “evolv[e] at a rapid pace.” Ibid. With the rise of the smartphone and instant streaming, many adolescents can now access vast li- braries of video content—both benign and obscene—at al- most any time and place, with an ease that would have been unimaginable at the time of Reno and Ashcroft II.

III With that background in mind, we turn now to the level of scrutiny that applies to H. B. 1181. Petitioners contend that the law must survive strict scrutiny because it imposes a content-based regulation on protected speech. The State, on the other hand, argues that the statute is subject only to rational-basis review because it does not burden any pro- tected speech. We think neither party has it right. Apply- ing our precedents, we hold that intermediate scrutiny applies. 478 FREE SPEECH COALITION, INC. v. PAXTON

A H. B. 1181 is an exercise of Texas's traditional power to prevent minors from accessing speech that is obscene from their perspective. To the extent that it burdens adults' rights to access such speech, it has “only an incidental effect on protected speech,” making it subject to intermediate scrutiny. Boy Scouts of America v. Dale, 530 U. S. 640, 659 (2000). 1 Age-verifcation laws like H. B. 1181 fall within States' authority to shield children from sexually explicit content. The First Amendment leaves undisturbed States' traditional power to prevent minors from accessing speech that is ob- scene from their perspective. Ginsberg, 390 U. S., at 641. That power necessarily includes the power to require proof of age before an individual can access such speech. It fol- lows that no person—adult or child—has a First Amendment right to access speech that is obscene to minors without frst submitting proof of age. The power to verify age is a necessary component of the power to prevent children's access to content that is obscene from their perspective. “No axiom is more clearly estab- lished in law, or in reason, than that . . . wherever a general power to do a thing is given, every particular power neces- sary for doing it is included.” The Federalist No. 44, p. 285 (C. Rossiter ed. 1961) (J. Madison); accord, T. Cooley, Consti- tutional Limitations 63 (1868); A. Scalia & B. Garner, Read- ing Law 192–193 (2012). Hence, where the Constitution re- serves a power to the States, it also reserves “the ordinary and appropriate means” of exercising that power. 1 J. Story, Commentaries on the Constitution of the United States § 430, pp. 412–413 (1833). For example, in the Eighth Amendment context we have explained that, because “capital punishment is constitutional, . . . `there must be a constitutional means of carrying it out.' ” Glossip v. Gross, 576 U. S. 863, 869 (2015) Cite as: 606 U. S. 461 (2025) 479

(alteration omitted). Similarly, because the First Amend- ment permits States to prohibit minors from accessing speech that is obscene to them, it likewise permits States to employ the ordinary and appropriate means of enforcing such a prohibition. Requiring proof of age to access that speech is one such means. Requiring age verifcation is common when a law draws lines based on age. For example, Texas, like many States, requires proof of age to obtain alcohol, Tex. Alco. Bev. Code Ann. § 106.03(b) (West 2020); tobacco, Tex. Health & Safety Code Ann. §§ 161.082(d), (e) (West Cum. Supp. 2024); a lottery ticket; 5 a tattoo, 25 Tex. Admin. Code §§ 229.406(a), (b) (2024); a body piercing, ibid.; freworks, Tex. Occ. Code Ann. § 2154.252(c) (West 2019); and a driver's license, Tex. Transp. Code Ann. § 521.142(a) (West 2018). Federal law similarly mandates age verifcation to obtain certain medications from a pharmacist, 21 CFR §§ 1306.26(c), (d) (2024), or to obtain employment as a minor, 29 CFR § 570.5 (2024). Fundamen- tal rights that turn on age are no different. Texas, again like many States, requires proof of age to obtain a handgun license, Tex. Govt. Code Ann. § 411.174(a)(3) (West 2019); to register to vote, Tex. Elec. Code Ann. §§ 13.002(c)(2), (8) (West 2020); and to marry, Tex. Fam. Code Ann. § 2.005(a) (West Cum. Supp. 2024). In none of these contexts is the constitu- tionality of a reasonable, bona fde age-verifcation require- ment disputed. See New York State Rife & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 38–39, n. 9 (2022); Crawford v. Marion County Election Bd., 553 U. S. 181, 202–203 (2008) (opinion of Stevens, J.); Zablocki v. Redhail, 434 U. S. 374, 386–387 (1978). Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights. The New York statute upheld in Ginsberg required age verifca- tion: It permitted a seller who sold sexual material to a minor to raise “ `honest mistake' ” as to age as an affrmative 5 See Tex. Lottery Comm'n, News Release, Texas Lottery Adds Age Verifcation to Self-Service Vending Machines (Jan. 7, 2025). 480 FREE SPEECH COALITION, INC. v. PAXTON

defense, but only if the seller had made “ `a reasonable bona fde attempt to ascertain the true age of [the] minor.' ” 390 U. S., at 644. Most States to this day also require age veri- fcation for in-person purchases of sexual material.6 And, petitioners concede that an in-person age-verifcation re- quirement is a “traditional sort of law” that is “almost surely” constitutional. Tr. of Oral Arg. 17. The facts of Ginsberg illustrate why age verifcation, as a practical matter, is necessary for an effective prohibition on minors accessing age-inappropriate sexual content. The statute in that case prohibited the knowing sale of sexual content to a minor under the age of 17. 390 U. S., at 633. The defendant was convicted of knowingly selling a porno- graphic magazine to a 16-year-old. Id., at 631. But, most of the time, it is almost impossible to distinguish a 16-year- old from a 17-year-old by sight alone. Thus, had the seller 6 See, e. g., Ala. Code §§ 13A–12–200.5(1), 13A–12–200.5(3)(a) (2015); Ariz. Page Proof Rev. Stat. Ann. Pending §§ 13–3501(3)(b), Publication 13–3506(A) (2018); Ark. Code Ann. §§ 5– 68–501(3)(B), 5–68–502(a)(2) (2024); Cal. Penal Code Ann. § 313.1(a) (West 2024); Colo. Rev. Stat. §§ 18–7–501(3)(b), 18–7–502(1) (2024); Conn. Gen. Stat. § 53a–196 (2025); Del. Code Ann., Tit. 11, §§ 1365(a)(2), (i)(1) (2015); D. C. Code §§ 22–2201(b)(1)(A), (b)(2)(F)(ii) (2001–2024); Fla. Stat. §§ 847.012(1)(b), (3) (2023); Ga. Code Ann. §§ 16–12–102(2)(B), 16–12–103(a) (2024); Idaho Code Ann. §§ 18–1514(10), 18–1515(1) (2016); Ill. Comp. Stat., ch. 720, §§ 5/11–21(b), (c)(1) (West 2023); Ind. Code §§ 35–49–3–3(a)(1), 35– 49–3–4(a)(3) (2024); Iowa Code §§ 728.2, 728.10 (2023); Kan. Stat. Ann. §§ 21–6401(b), (h)(1) (2023); La. Rev. Stat. Ann. §§ 14:91.11(A)(1), (D) (West 2018); Minn. Stat. Ann. §§ 617.292, subd. 8(2), 617.293, subd. 1 (West 2018); Mont. Code Ann. §§ 45–8–206(1), (2)(a) (2023); Neb. Rev. Stat. §§ 28–808(1), 28–810(1) (2016); N. H. Rev. Stat. Ann. §§ 571–B:1(II)(b), 571–B:2(I) (2021); N. M. Stat. Ann. §§ 30–37–1(G)(2), 30–37–2 (Lexis Nexis 2014); N. Y. Penal Law Ann. §§ 235.21(1), 235.23(2) (West 2024); N. C. Gen. Stat. Ann. §§ 14– 190.15(a), 14–19.15(c)(3) (2023); Ohio Rev. Code Ann. §§ 2907.31(A)(1), (B)(3) (West 2020); Okla. Stat., Tit. 21, §§ 1040.75(13)(b), 1040.76(2) (2011); 18 Pa. Cons. Stat. §§ 5903(c), (e)(7)(ii) (Cum. Supp. 2022); S. C. Code Ann. §§ 16–15–385(A), (C)(3) (2023); S. D. Codifed Laws §§ 22–24–28, 22–24– 31(1) (2017); Utah Code Ann. § 76–10–1206(1)(a) (Lexis Nexis 2017); Vt. Stat. Ann., Tit. 13, §§ 2802a(a), 2805(b)(1) (2018); Va. Code Ann. §§ 18.2– 390(7)(b), 18.2–391(A), (E) (2021); Wis. Stat. Ann. § 948.11(2) (West 2023). Cite as: 606 U. S. 461 (2025) 481

in Ginsberg not had an obligation to verify the age of the purchaser, he likely could have avoided liability simply by asserting ignorance as to the purchaser's age. Only an age-verifcation requirement can ensure compliance with an age-based restriction. The need for age verifcation online is even greater. Un- like a store clerk, a website operator cannot look at its visi- tors and estimate their ages. Without a requirement to sub- mit proof of age, even clearly underage minors would be able to access sexual content undetected. “ `[T]he basic princi- ples of freedom of speech . . . do not vary' when a new and different medium for communication appears.” Brown v. Entertainment Merchants Assn., 564 U. S. 786, 790 (2011); accord, Moody v. NetChoice, LLC, 603 U. S. 707, 733 (2024). Because proof of age performs the same critical function on- line that it does in person, requiring age verifcation remains an ordinary and appropriate means of shielding minors in the digital age from material that is obscene to them. H. B. 1181 imposes an age-verifcation requirement for on- line speech that is obscene to minors. The statute defnes covered “ `[s]exual material harmful to minors' ” as material that qualifes as obscene under the Miller test, as adjusted to the perspective of a minor. Tex. Civ. Prac. & Rem. Code Ann. § 129B.001(6); see supra, at 467, 472–473. And, the statute does not ban adults from accessing this material; it simply requires them to verify their age before accessing it on a covered website. § 129B.002(a).7 H. B. 1181 thus falls 7 The parties dispute whether H. B. 1181's defnition of “ `[s]exual mate- rial harmful to minors' ” requires covered speech to be obscene to all mi- nors (including 17-year-olds) or only to a minor (including a toddler). We need not resolve that question here. Whatever obscenity to minors can mean, the Texas Legislature plainly meant to tie H. B. 1181's defnition to that category of speech. We also doubt that this dispute is as signifcant as it frst may seem. Because the statute only covers explicit portrayals of nudity or sex acts that predominantly appeal to the prurient interest, it cannot conceivably be read to cover, say, a PG–13- or R-rated movie. We further question whether it is coherent to speak of the “ `prurient in- 482 FREE SPEECH COALITION, INC. v. PAXTON

within Texas's traditional power to protect minors from speech that is obscene from their perspective. 2 Because H. B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regu- late the protected speech of adults. A law can regulate the content of protected speech, and thereby trigger strict scru- tiny, either “on its face” or in its justifcation. Reed, 576 U. S., at 163–164 (internal quotation marks omitted). H. B. 1181 does not regulate the content of protected speech in either sense. On its face, the statute regulates only speech that is obscene to minors. That speech is unprotected to the extent the State seeks only to verify age. And, the statute can easily “be justifed without reference to the [protected] content of the regulated speech,” because its apparent pur- pose is simply to prevent minors, who have no First Amend- ment right to access speech that is obscene to them, from doing so. Id., at 164 (internal quotation marks omitted). That is not to say, however, that H. B. 1181 escapes all First Amendment scrutiny. Adults have the right to access speech that is obscene only to minors. Butler, 352 U. S., at

terest' ” of a very young child with no concept of sexuality, so any reading of the statute may well call for assessing obscenity from the perspective of an adolescent. See Ashcroft II, 542 U. S. 656, 679 (2004) (Breyer, J., dissenting). The parties also dispute whether H. B. 1181 permits a covered website to require age verifcation for its sexual material harmful to minors but not for its other content. We need not resolve this disagreement either. Even if the statute requires covered websites to demand age verifcation for all their content, and even if such a requirement would be unconstitu- tional, petitioners still have not shown that H. B. 1181 is facially invalid. Under our precedents, a statute is facially invalid under the First Amend- ment only if its “unconstitutional applications” are “substantially dispro- portionate to the statute's lawful sweep.” United States v. Hansen, 599 U. S. 762, 770 (2023). Here, petitioners have not even attempted to show that the covered websites that would segregate their content if given the choice substantially outnumber those that would not. Cite as: 606 U. S. 461 (2025) 483

383–384. And, submitting to age verifcation is a burden on the exercise of that right. But, adults have no First Amend- ment right to avoid age verifcation, and the statute can readily be understood as an effort to restrict minors' access. Any burden experienced by adults is therefore only inciden- tal to the statute's regulation of activity that is not protected by the First Amendment. That fact makes intermediate scrutiny the appropriate standard under our precedents. Dale, 530 U. S., at 659. In this respect, H. B. 1181 is analogous to the prohibition against destroying draft cards that this Court upheld in United States v. O'Brien, 391 U. S. 367 (1968). The prohibi- tion may have had the effect of making it unlawful to protest the draft by burning one's draft card. See id., at 369. But, the “destruction” of a draft card is not itself “constitutionally protected activity,” because the card is a Government docu- ment that, among other functions, serves as proof of registra- tion. Id., at 376, 378. The prohibition on destroying draft cards thus placed only an incidental burden on First Amend- ment expression, making it subject to intermediate scrutiny. Id., at 376–377. So too here, because accessing material ob- scene to minors without verifying one's age is not constitu- tionally protected, any burden H. B. 1181 imposes on pro- tected activity is only incidental, and the statute triggers only intermediate scrutiny. B Applying the more demanding strict-scrutiny standard would call into question the validity of all age-verifcation requirements, even longstanding requirements for brick-and- mortar stores. But, as petitioners acknowledge, after Gins- berg, no serious question about the constitutionality of in- person age-verifcation requirements for obscenity to minors has arisen. See Tr. of Oral Arg. 43 (acknowledging that they “don't know of any . . . challenge being brought” to an age-verifcation requirement for “brick-and-mortar stores”). Petitioners insist that their proposed rule would not call into 484 FREE SPEECH COALITION, INC. v. PAXTON

question these “traditional” requirements, because such re- quirements would “almost surely satisfy” strict scrutiny. Id., at 17. They also contend that a suffciently tailored on- line age-verifcation requirement (although not Texas's) could satisfy strict scrutiny too. Id., at 6–8. But, if we are not to compromise “ `[t]he “starch” in our constitutional standards,' ” we cannot share petitioners' confdence. Ash- croft II, 542 U. S., at 670 (quoting United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 830 (2000) (Thomas, J., concurring)). Strict scrutiny—which requires a restriction to be the least restrictive means of achieving a compelling governmen- tal interest—is “the most demanding test known to constitu- tional law.” City of Boerne v. Flores, 521 U. S. 507, 534 (1997). In the First Amendment context, we have held only once that a law triggered but satisfed strict scrutiny—to uphold a federal statute that prohibited knowingly providing material support to a foreign terrorist organization. See Holder v. Humanitarian Law Project, 561 U. S. 1, 27–39 (2010). That case involved an unusual application of strict scrutiny, since our analysis relied on the “deference” due to the Executive's “evaluation of the facts” in the context of “national security and foreign affairs.” Id., at 33–34.8 Strict scrutiny is unforgiving because it is the standard for reviewing the direct targeting of fully protected speech. Reed, 576 U. S., at 163. Strict scrutiny is designed to en- force “the fundamental principle that governments have no power to restrict expression because of its message, its ideas, 8 In Williams-Yulee v. Florida Bar, 575 U. S. 433 (2015), a bare majority held that a ban on the personal solicitation of campaign donations by candi- dates for judicial offce survived strict scrutiny. Id., at 444–456. But, only four Members of the majority thought that the statute triggered strict scrutiny to begin with. Id., at 442–444 (plurality opinion). The ffth Member, Justice Ginsburg, concluded that strict scrutiny did not apply and that States enjoy “substantial latitude . . . to enact campaign- fnance rules geared to judicial elections.” Id., at 457–458 (opinion concur- ring in part and concurring in judgment). Cite as: 606 U. S. 461 (2025) 485

its subject matter, or its content.” National Institute of Family and Life Advocates v. Becerra, 585 U. S. 755, 766 (2018) (internal quotation marks omitted). It succeeds in that purpose if and only if, as a practical matter, it is fatal in fact absent truly extraordinary circumstances. Strict scru- tiny therefore cannot apply to laws, such as in-person age- verifcation requirements, which are traditional, widespread, and not thought to raise a signifcant First Amendment issue. Once again, we need look no further than Ginsberg. There, this Court observed that it “is very doubtful” that New York's “legislative fnding” about the harmful effects of the speech its statute restricted “expresses an accepted scientifc fact.” 390 U. S., at 641. Nonetheless, because ob- scenity to minors is not fully protected speech, this Court readily upheld the statute. Id., at 641–643. Had the Court applied strict scrutiny, it could not have so easily cast that doubt aside. Cf. Brown, 564 U. S., at 799–800 (declining to defer to a legislature's view of “competing psychological studies” when applying strict scrutiny to a law restricting minors from purchasing violent video games). Petitioners would like to invalidate H. B. 1181 without up- setting traditional in-person age-verifcation requirements and perhaps narrower online requirements. But, strict scrutiny is ill suited for such nuanced work. The only prin- cipled way to give due consideration to both the First Amendment and States' legitimate interests in protecting minors is to employ a less exacting standard.

C We also reject petitioners' contention that, regardless of frst principles, our precedents require us to apply strict scrutiny to H. B. 1181. Every case that petitioners cite in- volved a law that banned both adults and minors from ac- cessing speech. But, this Court has never held that every content-based burden on adults' access to speech that is ob- scene to minors always triggers strict scrutiny. 486 FREE SPEECH COALITION, INC. v. PAXTON

1 Start with Butler, our earliest relevant precedent. There, this Court implicitly recognized that States may im- pose some burdens on adults in the course of protecting chil- dren from sexual material. The Court held that Michigan's legitimate interest in “shield[ing] juvenile innocence” could not justify a categorical ban on distributing sexually themed books “ `tending to the corruption of the morals of youth.' ” 352 U. S., at 381, 383. In so holding, the Court admonished the State for overlooking its other statutes “designed to pro- tect its children” that did not impose an outright ban. Id., at 383. One of these laws was a prohibition on exhibiting sexual material “ `tending to the corruption of the morals of youth' ” “ `in any . . . place within the view of children passing on any public street or highway.' ” Ibid., n. This law im- posed a content-based restriction on where adults could view such material. Yet, the Court implicitly suggested that it was a permissible alternative to an outright prohibition. Similarly, Ginsberg upheld a law that required sellers to verify age if they wished to raise “honest mistake” of age as a defense. See 390 U. S., at 644; supra, at 479–480. In the wake of that decision, the constitutionality of laws like New York's that impose in-person age-verifcation requirements has been taken as a given. See Tr. of Oral Arg. 43. And, although Ginsberg did not explicitly address the burden that age verifcation imposes on adults, in the almost six decades since it was decided, no one has thought to subject such re- quirements to strict scrutiny. Petitioners invoke two pre-internet cases in which this Court applied strict scrutiny. In the frst, the Court did so to invalidate “a blanket prohibition” on “dial-a-porn” phone messages that were “indecent but not obscene.” Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 118, 126 (1989). In the second, we did so to invalidate “a blanket ban” on broadcasting “indecent” but “not . . . obscene” cable television channels between the hours of 6 a.m. and 10 p.m. Cite as: 606 U. S. 461 (2025) 487

Playboy, 529 U. S., at 808, 811, 814.9 In contrast, H. B. 1181 is not a blanket prohibition. Adults remain free to access pornography on covered websites, so long as they verify their ages frst. Neither Sable nor Playboy addresses the First Amendment consequences of that more modest burden. Reno and Ashcroft II—our two decisions addressing at- tempts to restrict children's access to pornography online— likewise provide no support for petitioners' position that strict scrutiny applies. Reno applied strict scrutiny to the CDA because it operated as a ban on speech to adults. The CDA made it a crime for any person to post content that is “ `indecent' ” or “ `patently offensive' ” anywhere in “the en- tire universe of cyberspace” where the person knew a child would be among the recipients. 521 U. S., at 868, 876. And, although the CDA had an age-verifcation affrmative de- fense, that defense was illusory. In many cases, “existing technology did not include any effective method . . . to pre- vent minors from obtaining access . . . without also denying access to adults.” Id., at 876. The CDA thus triggered— and failed—strict scrutiny because it “effectively sup- presse[d] a large amount of speech that adults have a consti- tutional right to receive” and to share. Id., at 874 (emphasis

9 Playboy held that the statute at issue triggered strict scrutiny because it banned “ `30 to 50% of all adult programming.' ” 529 U. S., at 812; see ibid. (“To prohibit this much speech is a signifcant restriction . . . ” (em- phasis added)). Any discussion in that opinion of whether lesser burdens would also trigger strict scrutiny, see post, at 517–519 (Kagan, J., dissent- ing), was dicta. In any event, Playboy at a minimum cannot speak to when burdens on obscenity to minors trigger strict scrutiny. Playboy addressed a statute restricting “ `indecent' ” speech, 529 U. S., at 811, which is a broader category than obscenity to minors and so is entitled to greater First Amendment protection, see Reno v. American Civil Liber- ties Union, 521 U. S. 844, 877 (1997) (holding that indecent speech encom- passes “large amounts of nonpornographic material with serious educa- tional or other value”). Thus, a burden on obscenity to minors may not trigger strict scrutiny even if a comparable burden on indecent speech would. 488 FREE SPEECH COALITION, INC. v. PAXTON

added).10 This kind of ban is categorically different from H. B. 1181's age-verifcation requirement. Ashcroft II likewise characterized COPA as a ban. COPA criminally prohibited posting “content that is `harmful to mi- nors' ” online for “ `commercial purposes,' ” subject to an age- verifcation affrmative defense. 542 U. S., at 661–662. We thus applied strict scrutiny, because, as in Reno, the statute “ `effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive and to address to one another.' ” 542 U. S., at 665 (quoting Reno, 521 U. S., at 874). Because the parties agreed that strict scrutiny ap- plied, the Court's discussion of the applicable standard was brief. See 542 U. S., at 665. But, its wording was careful. The Government in Ashcroft II conceded that COPA trig- gered strict scrutiny because it “regulates expression . . . that is constitutionally protected for adults . . . on the basis of its content.” Brief for Petitioner in Ashcroft v. American Civil Liberties Union, O. T. 2003, No. 03–218, p. 18. Peti- tioners make essentially that same argument here. Yet, the Court did not endorse this sweeping proposition; instead, it invoked the narrower ground that COPA outright “ `sup- presse[d]' ” speech between adults. Ashcroft II, 542 U. S., at 665. To be sure, COPA established an age-verifcation defense. Id., at 662. But, because it did so only as an affrmative defense, COPA still operated as a ban on the public posting of material that is obscene to minors. See id., at 661–662 (citing 47 U. S. C. §§ 231(a)(1), (c)(1)). This was so because an indictment need only “alleg[e] the necessary elements of

10 The dissent contends that Reno imposed a regulation “similar to Tex- as's law,” not a ban. Post, at 518. But, at the same time, the dissent acknowledges that the statute at issue in Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989), was a ban. See ibid. And, Reno held that “the CDA effectively resembles the ban on `dial-a-porn' invalidated in Sable.” 521 U. S., at 875. The dissent's characterization of Reno is at war with Reno's description of itself. Cite as: 606 U. S. 461 (2025) 489

an offense”; it need not “anticipate affrmative defenses.” United States v. Sisson, 399 U. S. 267, 287–288 (1970). Under COPA, the Government thus remained free to bring criminal charges against any covered person who publicly posted speech that was obscene to minors, even if he had fully implemented compliant age-verifcation procedures. See Ashcroft II, 542 U. S., at 670–671; id., at 674 (Stevens, J., concurring). The same is not true under H. B. 1181, which makes the lack of age verifcation an element that the State must plead and prove. Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a). 2 Petitioners read Reno and Ashcroft II to establish a com- prehensive framework to govern all future attempts to re- strict children's access to online pornography. As we have just explained, that view cannot be squared with those cases, which addressed only outright bans on material that was ob- scene to minors but not to adults. Petitioners also fail to appreciate the context in which those cases were decided. This Court decided both cases when the internet was “still more of a prototype than a fnished product”—Reno in 1997 and Ashcroft II in 2004, with factual fndings made in 1999. A. Kennedy, The Rough Guide to the Internet 493 (8th ed. 2002) (Kennedy). We were mindful that “judicial answers” to “the totally new problems” presented by new technology are necessarily “truncated,” and that in such circumstances “we ought not to anticipate” questions beyond those immedi- ately presented. Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944); accord, TikTok Inc. v. Garland, 604 U. S. 56, 62 (2025) (per curiam). We did not purport to de- cide more than the specifc circumstances of the cases that were before us. The Court in Reno was quite concerned about the unique threat that the CDA posed to the development of the then- nascent internet. Reno was this Court's frst decision about the internet. In describing the background of the case, we 490 FREE SPEECH COALITION, INC. v. PAXTON

“felt the need to explain . . . that the `Internet is an interna- tional network of interconnected computers,' ” NetChoice, 603 U. S., at 713–714 (quoting Reno, 521 U. S., at 849), and we marveled that the internet had grown to 40 million users worldwide, id., at 850. In resolving the case, the Court was keenly aware that the “wholly unprecedented” “breadth of the CDA's coverage” “threaten[ed] to torch a large segment” of this emerging medium of communication. Id., at 877, 882. In these uncharted waters, the Court was cautious not to defnitively establish when regulations on internet pornogra- phy triggered strict scrutiny. Similarly, Ashcroft II was a self-consciously narrow and factbound decision. There, the Court reviewed a prelimi- nary injunction based on a record that was “over fve years” old, all while the “technology of the Internet” continued to “evolv[e] at a rapid pace.” 542 U. S., at 671. As a result, we emphasized the abuse-of-discretion standard and made clear that we did not mean to rule defnitively on COPA's constitutionality. Id., at 673. Moreover, we could not have meant to offer a comprehensive discussion on the appropriate standard of scrutiny for laws protecting children from sexual content online, given that the appropriate standard was not even a contested issue in the case. In the quarter century since the factual record closed in Ashcroft II, the internet has expanded exponentially. In 1999, only two out of fve American households had home internet access. Dept. of Commerce, Census Bureau, Home Computers and Internet Use in the United States: Aug. 2000, p. 2 (2001). Nearly all those households used a desktop com- puter or laptop to connect to the internet, and most used a dial-up connection. Dept. of Commerce, Economics and Sta- tistics Admin., A Nation Online: Entering the Broadband Age 1, 5 (2004). Connecting through dial-up came with sig- nifcant limitations: Dial-up is much slower than a modern broadband connection, and because dial-up relied on the home's phone line, many households could not use the in- ternet and make or receive phone calls at the same time. Cite as: 606 U. S. 461 (2025) 491

See Inline Connection Corp. v. AOL Time Warner Inc., 302 F. Supp. 2d 307, 311 (Del. 2004). And, “video-on-demand” was largely just a notion that fgures like “Bill Gates and Al Gore rhapsodize[d] about”; “most Netizens would [have] be[en] happy with a system fast enough to view static photos without waiting an age.” Kennedy 493–494. In contrast, in 2024, 95 percent of American teens had ac- cess to a smartphone, allowing many to access the internet at almost any time and place. M. Faverio & O. Sidoti, Pew Research Center, Teens, Social Media and Technology 2024, p. 19. Ninety-three percent of teens reported using the in- ternet several times per day, and watching videos is among their most common activities online. Id., at 4–5, 20. The content easily accessible to adolescents online includes mas- sive libraries of pornographic videos. For instance, in 2019, Pornhub, one of the websites involved in this case, published 1.36 million hours—or over 150 years—of new content. App. 177. Many of these readily accessible videos portray men raping and physically assaulting women—a far cry from the still images that made up the bulk of online pornography in the 1990s. See N. Kristof, The Children of Pornhub, N. Y. Times, Dec. 6, 2020, p. SR4. The Court in Reno and Ash- croft II could not have conceived of these developments, much less conclusively resolve how States could address them. Of course, Reno and Ashcroft II do not cease to be prece- dential simply because technology has changed so dramati- cally. See NetChoice, 603 U. S., at 733–734. “But respect for past judgments also means respecting their limits.” Brown v. Davenport, 596 U. S. 118, 141 (2022). It is mislead- ing in the extreme to assume that Reno and Ashcroft II spoke to the circumstances of this case simply because they both dealt with “the internet” as it existed in the 1990s. The appropriate standard of scrutiny to apply in this case is a diffcult question that no prior decision of this Court has squarely addressed. For the reasons we have explained, we hold today that H. B. 1181 triggers only intermediate scrutiny. 492 FREE SPEECH COALITION, INC. v. PAXTON

D The dissent's arguments for strict scrutiny are no more persuasive than petitioners'. The dissent claims that strict scrutiny applies because H. B. 1181 is “a quintessential content-based law.” Post, at 504 (opinion of Kagan, J.). We agree that H. B. 1181 targets speech that is obscene for minors based on its communicative content. But, where the speech in question is unprotected, States may impose “re- strictions” based on “content” without triggering strict scru- tiny. Stevens, 559 U. S., at 468 (internal quotation marks omitted). Because speech that is obscene to minors is un- protected to the extent that the State imposes only an age- verifcation requirement, H. B. 1181's content-based restric- tion does not require strict scrutiny. The law is content based in the same way that prohibitions of “defamation,” “fraud,” and “incitement” are. Ibid. The dissent's attempt to distinguish O'Brien and its prog- eny fails for the same reason. See post, at 515–517. The dissent protests that H. B. 1181 cannot trigger intermediate scrutiny under O'Brien because it is “a direct regulation of speech,” not “a regulation of conduct” that incidentally bur- dens “expressive activity.” Post, at 516. When speech has both protected and unprotected features, however, “the un- protected features of the [speech] are, despite their [commu- nicative] character, essentially a `nonspeech' element” for purposes of the First Amendment. R. A. V. v. St. Paul, 505 U. S. 377, 386 (1992). With that principle in hand, H. B. 1181 fts comfortably within the O'Brien framework: The law di- rectly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verif- cation) while only incidentally burdening protected activity (ultimately accessing that material).11 11 The dissent complains that Sable, Playboy, Reno, and Ashcroft II never “proposed an analogy to O'Brien.” Post, at 517; United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000). That fact is unsurprising. Because all four cases involved outright bans on speech Cite as: 606 U. S. 461 (2025) 493

The dissent's real point of disagreement is whether an age- verifcation requirement regulates the protected speech of adults. On this point, the dissent has nothing to offer aside from the bald assertion that our precedents have held as much. See post, at 503–508. But, our precedents have held no such thing. Because our previous decisions concerned only outright bans, see supra, at 486–489, this Court has never before considered whether lesser burdens aimed at distinguishing children from adults directly regulate any free speech right of adults.12 Instead, as we have explained, the First Amendment leaves undisturbed States' power to impose age limits on speech that is obscene to minors. That power, according to both “common sense” and centuries of legal tradition, in- cludes the ordinary and appropriate means of exercising it. Scalia & Garner, Reading Law, at 192. And, an age- verifcation requirement is an ordinary and appropriate means of enforcing an age limit, as is evident both from all other contexts where the law draws lines based on age and from the long, widespread, and unchallenged practice of re- quiring age verifcation for in-person sales of material that is obscene to minors. Supra, at 479–481. Beyond misreading precedent, the dissent's only other response to our reasoning is to assert that age verifcation is not necessarily included in the power to draw an age-based line because “an age veri- fcation mandate burdens an adult's First Amendment” rights. Post, at 512. That response simply assumes what the dissent sets out to prove. that is at most obscene only to minors, see supra, at 486–489, the statutes at issue directly (and not merely incidentally) regulated adults' protected speech. 12 The dissent is correct that, for fully protected speech, “the distinction between bans and burdens makes no difference to the level of scrutiny.” Post, at 518. But, when the First Amendment partially protects speech, such that the government may impose certain content-based restrictions on it but may not proscribe it outright, the distinction between a ban and lesser burdens is meaningful. 494 FREE SPEECH COALITION, INC. v. PAXTON

The dissent expresses surprise that obscenity for minors is “only partially” protected speech for adults. Post, at 513 (internal quotation marks omitted). But, it does not truly deny that this is the case. The defendant in Ginsberg, after all, was an adult vendor of pornography, not an underage purchaser. 390 U. S., at 631. It would be diffcult, practi- cally speaking, for States to restrict children's access to por- nography without regulating adult vendors. And, Ginsberg accordingly held that New York's content-based restriction on the rights of adult vendors triggered only rational-basis review. Id., at 641. Thus, so long as the dissent accepts Ginsberg, it cannot deny that the question before us is which content-based regulations States may impose on adults with- out triggering strict scrutiny, not whether they may do so. Finally, the dissent claims that we engage in “backwards,” results-oriented reasoning because we are unwilling to adopt a position that would call into question the constitutionality of longstanding in-person age-verification requirements. Post, at 510–511. Not so. We appeal to these requirements because they embody a constitutional judgment—made by generations of legislators and by the American people as a whole—that commands our respect. A decision “contrary to long and unchallenged practice . . . should be approached with great caution,” “no less than an explicit overruling” of a precedent. Payne v. Tennessee, 501 U. S. 808, 835 (1991) (Scalia, J., concurring). It would be perverse if we showed less regard for in-person age-verifcation requirements sim- ply because their legitimacy is so uncontroversial that the need for a judicial decision upholding them has never arisen.13

13 Even the dissent recognizes the force of this point to some extent, which is why it insists that in-person age-verifcation requirements would have “a real chance of surviving” under its approach. Post, at 510. But, the dissent has no way to make good on this assurance other than to say that strict scrutiny need not be a “horror show” for States—or, in other words, that the First Amendment is not really as great an obstacle to suppressing fully protected speech as it might seem. Ibid. Cite as: 606 U. S. 461 (2025) 495

E Texas, like the Fifth Circuit, contends that intermediate scrutiny is too demanding and that only rational-basis review applies. This position fails to account for the incidental bur- den that age verifcation necessarily has on an adult's First Amendment right to access speech that is obscene only to minors. Rational basis is the appropriate standard for laws that do not implicate “fundamental constitutional rights” at all. Beach Communications, 508 U. S., at 313. Intermedi- ate scrutiny, which is deferential but not toothless, plays an important role in ensuring that legislatures do not use osten- sibly legitimate purposes to disguise efforts to suppress fun- damental rights. Despite advocating for rational-basis review, Texas itself has acknowledged the need for more searching review. The State concedes, for instance, that it could not require as proof of age an “affdavit” from the individual's “biological parent.” Tr. of Oral Arg. 107. That example is precisely the sort of ma- nipulation of a legitimate kind of regulation that intermediate scrutiny can weed out but that rational-basis review cannot. Texas argues that Ginsberg establishes that age- verifcation requirements receive only rational-basis review. But, although Ginsberg applied that standard to a statute with an age-verifcation requirement, the Court did not squarely address the incidental effect that the law had on adults' First Amendment rights. See 390 U. S., at 637–643. Moreover, Ginsberg was decided before this Court frst artic- ulated the intermediate-scrutiny standard for incidental bur- dens on free speech. See O'Brien, 391 U. S., at 376–377. In a two-tiered framework, where the only options were strict scrutiny and rational-basis review, the latter was the better standard for an age-verifcation requirement.

IV A statute survives intermediate scrutiny if it “advances important governmental interests unrelated to the suppres- 496 FREE SPEECH COALITION, INC. v. PAXTON

sion of free speech and does not burden substantially more speech than necessary to further those interests.” Turner II, 520 U. S., at 189. H. B. 1181 readily satisfes these requirements. A H. B. 1181 undoubtedly advances an important govern- mental interest. Texas's interest in shielding children from sexual content is important, even “compelling.” Reno, 521 U. S., at 869; Sable, 492 U. S., at 126. H. B. 1181 furthers that interest by preventing minors from easily circumvent- ing a prohibition on their accessing sexual content. H. B. 1181 is also suffciently tailored to Texas's interest. Under intermediate scrutiny, a regulation is adequately tai- lored so long as the government's interest “would be achieved less effectively absent the regulation” and the regu- lation “does not burden substantially more speech than is necessary to further that interest.” TikTok, 604 U. S., at 76 (internal quotation marks omitted). The regulation “need not be the least restrictive . . . means of ” serving the State's interest. Ward v. Rock Against Racism, 491 U. S. 781, 798 (1989). And, the regulation's validity “ `does not turn on [our] agreement with the [legislature] concerning the most appropriate method for promoting signifcant government in- terests' or the degree to which those interests should be pro- moted.” Id., at 800. Under this standard, requiring age verifcation online is plainly a legitimate legislative choice. Since at least the days of Ginsberg, States have commonly used age- verifcation requirements, in the case of in-person access to sexual materials, to reconcile their interest in protecting children with adults' right to avail themselves of such mate- rials. This approach ensures that an age-based ban is not ineffectual, while at the same time allowing adults full access to the content in question after the modest burden of provid- ing proof of age. H. B. 1181 simply adapts this traditional approach to the digital age. Cite as: 606 U. S. 461 (2025) 497

The specifc verifcation methods that H. B. 1181 permits are also plainly legitimate. At present, H. B. 1181 allows for verifcation using government-issued identifcation or transactional data. Tex. Civ. Prac. & Rem. Code Ann. § 129B.003(b)(2). Verifcation can take place on the covered website itself or through a third-party service. § 129B.003(b). Other age-restricted services, such as online gambling, alcohol and tobacco sales, and car rentals, rely on the same methods. App. 188–190, 194, 198. And, much of the online pornography industry has used analogous methods for decades. In Reno, this Court observed that age verif- cation through credit-card transactions “is not only techno- logically available but actually is used by commercial provid- ers of sexually explicit material,” who (unlike many of the noncommercial sites covered by the CDA) “ `would remain relatively unaffected' ” were such verifcation required. 521 U. S., at 856, 863, 881. The District Court in Ashcroft II found that the users of tens of thousands of pornographic websites verifed their ages by submitting “a copy of a pass- port or driver's license” to a third-party verifcation service. American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 490 (ED Pa. 1999) (fndings 51–52). H. B. 1181 simply re- quires established verifcation methods already in use by pornographic sites and other industries. That choice is well within the State's discretion under intermediate scrutiny.

B Petitioners' counterarguments are unpersuasive. Peti- tioners contend that Texas could adopt less restrictive means of protecting children, such as encouraging parents to install content-fltering software on their children's devices or re- quiring internet service providers to block adult content un- less a household opts in to receiving it. But, even assuming these approaches are equally or more effective, under inter- mediate scrutiny a “regulation will not be invalid simply be- cause a court concludes that the government's interest could 498 FREE SPEECH COALITION, INC. v. PAXTON

be adequately served by some less-speech-restrictive alter- native.” Ward, 491 U. S., at 800. Texas's interest in shield- ing children from sexual content “ `would be achieved less effectively absent' ” H. B. 1181, and it cannot be said that “a substantial portion of the burden” that H. B. 1181 imposes fails “to advance [Texas's] goals.” Id., at 799. That is enough to show that the Texas Legislature adequately tai- lored H. B. 1181, regardless of whether some other approach might be superior.14 Petitioners further argue that H. B. 1181 is not appropri- ately tailored, because it does not require age verifcation on other sites, such as search engines and social-media websites, where children are likely to fnd sexually explicit content. But, under intermediate scrutiny, “ `the First Amendment imposes no freestanding underinclusiveness limitation,' ” and Texas “ `need not address all aspects of a problem in one fell swoop.' ” TikTok, 604 U. S., at 76. Further, Texas has a reasonable basis for excluding these sites from H. B. 1181's coverage. The statute does not contain any special excep- tion for social-media sites. See Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a). Rather, such sites fall outside the stat- ute to the extent that less than a third of their content is obscene to minors. And, it is reasonable for Texas to con- clude that websites with a higher proportion of sexual con- tent are more inappropriate for children to visit than those with a lower proportion. The statute, on the other hand, does explicitly exempt search engines. § 129B.005(b). But, 14 Petitioners contend that H. B. 1181 does not allow covered websites to use newer biometric methods of age verifcation, like face scans, that they claim are less likely to give rise to privacy concerns. Texas dis- agrees, maintaining that H. B. 1181 does allow such methods. We need not resolve this disagreement because Texas is not required to adopt the least restrictive means of advancing its interests to pass intermediate scrutiny. Ward, 491 U. S., at 800. It is suffcient that verifying age by government identifcation and transactional data is a legitimate legislative choice that does not impose excessive burdens on users. Cite as: 606 U. S. 461 (2025) 499

search engines do not exercise the same degree of con- trol over the websites to which they link, so the State could reasonably conclude that it makes less sense to regulate them. Petitioners next assert that privacy concerns and the unique stigma surrounding pornography will make age veri- fcation too chilling for adults. But, users only have to sub- mit verifcation to the covered website itself or the third- party service with which the website contracts. See § 129B.003(b). Both those entities have every incentive to assure users of their privacy. In any event, the use of por- nography has always been the subject of social stigma. This social reality has never been a reason to exempt the pornog- raphy industry from otherwise valid regulation. Cf. United States v. American Library Assn., Inc., 539 U. S. 194, 209 (2003) (plurality opinion) (holding that the “risk of embar- rassment” involved in asking a librarian to unblock a website wrongly blocked as obscene did not impose a cognizable bur- den on a library patron's access to speech). And, the decades-long history of some pornographic websites requir- ing age verifcation refutes any argument that the chill of verifcation is an insurmountable obstacle for users.

* * * H. B. 1181 simply requires adults to verify their age before they can access speech that is obscene to children. It is therefore subject only to intermediate scrutiny, which it readily survives. The statute advances the State's impor- tant interest in shielding children from sexually explicit con- tent. And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identifcation and sharing transactional data. The judgment of the Court of Appeals for the Fifth Circuit is affrmed. It is so ordered. 500 FREE SPEECH COALITION, INC. v. PAXTON

Kagan, J., dissenting

Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, dissenting. No one doubts that the distribution of sexually explicit speech to children, of the sort involved here, can cause great harm. Or to say the same thing in legal terms, no one doubts that States have a compelling interest in shielding children from speech of that kind. What is more, children have no constitutional right to view it. The Texas statute before us (H. B. 1181) addresses speech understood in First Amendment law as “obscene for minors.” That label means the First Amendment does not protect the speech for mi- nors. The State can restrict their access without fear of colliding with the Constitution. The trouble comes in the last two sentences' italics. Speech that is obscene for minors is often not so for adults. For them, the category of obscene—and therefore unpro- tected speech—is narrower. See ante, at 472–474. So adults have a constitutional right to view the very same speech that a State may prohibit for children. And it is a fact of life—and also of law—that adults and children do not live in hermetically sealed boxes. In preventing children from gaining access to “obscene for children” speech, States sometimes take measures impeding adults from viewing it too—even though, for adults, it is constitutionally protected expression. What, then, to do? Cases raising that question have reached this Court on no fewer than four prior occasions—and we have given the same answer, consistent with general free speech principles, each and every time. Under those principles, we apply strict scrutiny, a highly rigorous but not fatal form of consti- tutional review, to laws regulating protected speech based on its content. See ante, at 471. And laws like H. B. 1181 ft that description: They impede adults from viewing a class of speech protected for them (even though not for children) and defned by its content. So when we have confronted those laws before, we have always asked the strict-scrutiny ques- Cite as: 606 U. S. 461 (2025) 501

tion: Is the law the least restrictive means of achieving a compelling state interest? See ibid. There is no reason to change course. A law like H. B. 1181 might well pass the strict-scrutiny test, hard as it usually is to do so. As just noted, everyone agrees that shielding children from exposure to the sexually explicit speech H. B. 1181 targets is a compelling state inter- est. And Texas might be right in arguing that it has no less restrictive way to achieve that goal: It is diffcult, as every- one also agrees, to limit minors' access to things appearing on the internet. If H. B. 1181 is the best Texas can do— meaning, the means of achieving the State's objective while restricting adults' speech rights the least—then the statute should pass First Amendment review. But what if Texas could do better—what if Texas could achieve its interest without so interfering with adults' con- stitutionally protected rights in viewing the speech H. B. 1181 covers? That is the ultimate question on which the Court and I disagree. The majority says that Texas may enforce its statute regardless, because only intermediate scrutiny applies and that test does not ask whether a State has adopted the least speech-restrictive means available. I disagree, based on conventional First Amendment rules and the way we have consistently applied them in this very con- text. The State should be foreclosed from restricting adults' access to protected speech if that is not in fact necessary. The majority's opinion concluding to the contrary is, to be frank, confused. The opinion, to start with, is at war with itself. Parts suggest that the First Amendment plays no role here—that because Texas's law works through age veri- fcation mandates, the First Amendment is beside the point. See ante, at 478–482. But even the majority eventually gives up that ghost. As, really, it must. H. B. 1181's require- ments interfere with—or, in First Amendment jargon, bur- den—the access adults have to protected speech: Some indi- 502 FREE SPEECH COALITION, INC. v. PAXTON

viduals will forgo that speech because of the need to identify themselves to a website (and maybe, from there, to the world) as a consumer of sexually explicit expression. But still, the majority proposes, that burden demands only inter- mediate scrutiny because it arises from an “incidental” re- striction, given that Texas's statute uses age verifcation to prevent minors from viewing the speech. See ante, at 478, 482–483. Except that is wrong—nothing like what we have ever understood as an incidental restraint for First Amend- ment purposes. Texas's law defnes speech by content and tells people entitled to view that speech that they must incur a cost to do so. That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its con- tent—which demands strict scrutiny. The majority's attempt to distinguish our four precedents saying just that rounds out the list of its errors. According to the majority, all of those decisions involved prohibiting rather than merely burdening adults' access to obscene-for- children speech. See ante, at 485. But that is not true. And in any event it would not matter: The First Amendment prevents making speech hard, as well as banning it outright. So on all accounts the majority's rationale craters. The majority is not shy about why it has adopted these special-for-the-occasion, difficult-to-decipher rules. It thinks they are needed to get to what it considers the right result: giving Texas permission to enforce its statute. See ante, at 483–485. But Texas should not receive that permis- sion if it can achieve its goal as to minors while interfering less with the speech choices of adults. And if it cannot, then Texas's statute would survive strict scrutiny, given the obvi- ous importance of its goal. For that reason, the majority's analysis is as unnecessary as it is unfaithful to the law.

I Under ordinary First Amendment doctrine, this Court should subject H. B. 1181 to strict scrutiny. That is because Cite as: 606 U. S. 461 (2025) 503

H. B. 1181 covers speech constitutionally protected for adults; impedes adults' ability to view that speech; and im- poses that burden based on the speech's content. Case closed. And making the right answer yet more obvious, we have said as much four times before, when reviewing stat- utes imposing similar content-based burdens on protected sexually explicit speech. So the case is closed even tighter: The standard should be strict scrutiny. The only open ques- tion here should be whether H. B. 1181 can satisfy that test.

A No one (not even Texas, not even the majority) disputes that H. B. 1181 covers a substantial amount of speech pro- tected by the First Amendment. We have, of course, often held that obscene speech, as defned in Miller v. California, 413 U. S. 15 (1973), is not so protected. But H. B. 1181 does not use the ordinary Miller test (relating to prurience, offen- siveness, and value) as the trigger for regulation. Instead, it adapts each part of that test “for minors,” thus covering speech that is “obscene from a child's perspective.” See Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a) (West Cum. Supp. 2024); ante, at 474 (emphasis deleted). And that child- centric category of speech extends wider than the traditional obscenity category. See ante, at 474. In the gap between the two is much sexually explicit speech that adults have every right to view. For adults cannot be limited to “only what is ft for children.” Butler v. Michigan, 352 U. S. 380, 383 (1957). Their right to view “[s]exual expression,” out- side the traditional obscenity category, is “protected by the First Amendment.” Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). And H. B. 1181 impedes the exercise of that right. Recall how the statute works. To enter a covered website—with all the protected speech just described—an individual must verify his age by using either a “government-issued identif- cation” like a driver's license or “transactional data” associ- 504 FREE SPEECH COALITION, INC. v. PAXTON

ated with things like a job or mortgage. §§ 129B.001(7), 129B.003(b)(2); see ante, at 466–467. For the would-be con- sumer of sexually explicit materials, that requirement is a deterrent: It imposes what our First Amendment decisions often call a “chilling effect.” E. g., Americans for Prosper- ity Foundation v. Bonta, 594 U. S. 595, 606 (2021). It is not, contra the majority, like having to fash ID to enter a club. See ante, at 479. It is turning over information about your- self and your viewing habits—respecting speech many fnd repulsive—to a website operator, and then to . . . who knows? The operator might sell the information; the operator might be hacked or subpoenaed. We recognized the problem in a case involving sexual material on cable TV: Similar demands, we decided, would “restrict viewing by subscribers who fear for their reputations should the operator, advertently or in- advertently, disclose the list of those who wish to watch the `patently offensive' channel.” Denver Area Ed. Telecommu- nications Consortium, Inc. v. FCC, 518 U. S. 727, 754 (1996). The internet context can only increase the fear. And the Texas law imposes costs not just on potential users, but on website operators too. They must either implement a sys- tem costing (the District Court found) at least $40,000 for every 100,000 verifcations, or else pay penalties of $10,000 per day. See § 129B.006(b); Free Speech Coalition, Inc. v. Colmenero, 689 F. Supp. 3d 373, 385–386 (WD Tex. 2023). Those expenses, Texas boasts, have already caused one major operator to exit the State's market. See Brief for Re- spondent 21. So in multiple ways, H. B. 1181 burdens expression. Finally, H. B. 1181 imposes those burdens on protected speech based on the speech's “communicative content,” mak- ing it a quintessential content-based law. Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). A statute, we have often said, is content-based on its face when it “draws distinctions” based on the “topic,” “subject matter,” “idea,” or “message expressed.” E. g., ibid. H. B. 1181 does just that. It ap- Cite as: 606 U. S. 461 (2025) 505

plies when more than a third of the expression on a website is “sexual material” of a certain kind (prurient, offensive, and valueless for minors). §§ 129B.001(6), 129B.002(a). And whether expression qualifes as such material depends entirely on what it depicts. If the website has the requisite sexually explicit content, the regulation kicks in. Alterna- tively, if that content is absent (if, say, the website focuses on politics or sports), the regulation does not. “That is about as content-based as it gets.” Barr v. American Assn. of Political Consultants, Inc., 591 U. S. 610, 619 (2020) (plu- rality opinion). Not even the majority disputes the point. See ante, at 492. All of that leads, under well-settled law, to just one conclu- sion: H. B. 1181 is subject to strict scrutiny. Take a law burdening protected speech based on its content—as H. B. 1181 does for every adult—and the standard of review fol- lows in its wake. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994) (We “apply the most exacting scrutiny to regulations that suppress, disadvantage, or im- pose differential burdens upon speech because of its con- tent”). It does not matter whether we are persuaded in a given case that the State, in passing the regulation, had laud- able, even compelling aims. See Reed, 576 U. S., at 166 (A good “justifcation cannot transform a facially content-based law into” the opposite). Those interests are considered only in applying strict scrutiny, not in deciding whether that is the right standard to be applied. Over the years, we have recited the governing rule almost like a mantra: If a law burdens protected speech based on what that speech says or depicts—as H. B. 1181 does—the law has to clear the strict- scrutiny bar. B What is more, our precedents have applied that rule in four cases similar to this one—when a statute has limited adults' access to sexually explicit materials in order to pre- vent those materials from getting to minors. The laws at 506 FREE SPEECH COALITION, INC. v. PAXTON

issue pertained to diverse media—the telephone, cable, and (twice, as here) the internet. But the analysis about the level of scrutiny was in each case the same. To show the Court's (previous) consistency—and its relevance today—it is worth reviewing them one by one by one by one. In Sable Communications v. FCC, the Court considered a statute directed at dial-a-porn services that prohibited sexu- ally “indecent” telephone messages, extending beyond those obscene for adults under Miller. 492 U. S., at 122–123. The Government defended the law as an effort to protect children from exposure to the speech. See id., at 128. We recognized that interest as compelling. See id., at 126. But we also understood that adults had a “protected” First Amendment right to listen to the non-obscene indecent speech that the law covered. Ibid. And so the Court ap- plied strict scrutiny—thus requiring the Government to show that the statute did not “unnecessarily interfer[e] with [adults'] First Amendment freedoms.” Ibid. Then, in Reno v. American Civil Liberties Union, 521 U. S. 844, 859–861 (1997), the Court addressed a statute bar- ring internet transmissions of obscene, indecent, or “patently offensive” messages to those under 18, with an affrmative defense available to anyone making use of age verifcation measures. Although the statute encompassed only commu- nications to minors and excused from penalties those using a “reasonable” method to verify age, the Court recognized the “burden” that the statute would impose “on adult speech.” Id., at 860, 874. Because of that “interfere[nce] with adult- to-adult communication”—and despite the signifcance of the Government interest “in protecting children”—the Court again insisted on applying strict scrutiny. Id., at 875–876. So once more the key issue was whether “less restrictive alternatives would be at least as effective in achieving” the Government's goals. Id., at 874. Next, in United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 806 (2000), the Court evaluated a law re- Cite as: 606 U. S. 461 (2025) 507

quiring that “sexually-oriented” cable channels “limit their transmission to hours when children are unlikely to be view- ing.” “[W]hat standard [must] the Government” meet, the Court asked, for the law to survive? Id., at 814. We did not think the question close. “As we consider a content- based regulation” of “protected speech,” we said, “the an- swer should be clear: The standard is strict scrutiny.” Ibid.; see id., at 812–813. So “if a less restrictive means” would serve the Government's goals, “the Government must use it.” Id., at 815. Otherwise, the Court explained, the Gov- ernment could, contrary to the First Amendment, “restrict speech without an adequate justifcation.” Id., at 813. And the denouement: The statute the Court addressed in Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004), was a near-twin of Texas's. The Child Online Protec- tion Act (COPA) prohibited commercial entities from posting on the internet content “harmful to minors.” Id., at 661 (quoting 47 U. S. C. § 231(a)(1)). And just like H. B. 1181, that statute defned the covered material by adapting the Miller obscenity test for children—thus creating a category of obscene-for-children speech. See 542 U. S., at 661–662; supra, at 503. So too, COPA made the adoption of an age verifcation system crucial. It did so by providing an af- frmative defense to any entity that verifed age through an “adult personal identifcation number” or similar mechanism before granting access to the posted materials. Ashcroft, 542 U. S., at 662. So, as in H. B. 1181, if the poster verifed age, no liability could attach. How, then, to analyze such a statute? The Court viewed the problem as it had in prior cases: COPA, though directed at keeping sexually explicit materials from children, “was likely to burden some speech that is protected for adults.” Id., at 665. And because of that “content-based restriction[ ],” the Court needed to apply strict scrutiny. Id., at 660, 665, 670. The Government thus had to show that “the proposed alternatives will not be as effective as the challenged statute.” Id., at 665. In short, 508 FREE SPEECH COALITION, INC. v. PAXTON

Ashcroft adhered to the view that “ `the governmental inter- est in protecting children from harmful materials' does not `justify an unnecessarily broad suppression of speech ad- dressed to adults.' ” Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 581 (2001) (Thomas, J., concurring in part and con- curring in judgment) (quoting Reno, 521 U. S., at 875).1 Four times, one result. Which is not surprising, because it is the result that basic First Amendment principles com- mand. A statute tries to cut off children's access to sexually explicit speech, in line with the most worthy objectives. But the statute as well impedes adults' access to that speech, which the First Amendment protects. And the statute does so by drawing content-based lines: Sexually explicit speech is burdened, other speech is not. It follows, as the night the day, that strict scrutiny applies—that the statute, in addition to serving a compelling purpose, can restrict only as much adult speech as is needed to achieve the State's goal. That is true in the four cases above, and it is true in this case too. C Applying strict scrutiny in this context, however, need not be a death sentence. To the contrary, a State exercising

1 The majority does—and then does not—accept this simple fact. It frst acknowledges that Ashcroft decided “COPA was subject to strict scrutiny.” Ante, at 476. But later, it tries to take part of its concession back. The Ashcroft Court, it says, could not have “comprehensive[ly]” addressed the “appropriate standard of scrutiny for laws protecting chil- dren from sexual content online, given that the appropriate standard was not even a contested issue in the case.” Ante, at 490. The second half of that sentence is right, but it does not support the frst. Having argued in Sable, Reno, and Playboy for a less rigorous standard of review—and been rebuffed each time—the Government in Ashcroft fnally gave up. Or otherwise said, it recognized reality. See Tr. of Oral Arg. 64. Three times before, the Court had said something like, “[T]he answer should be clear: The standard is strict scrutiny.” United States v. Playboy Enter- tainment Group, Inc., 529 U. S. 803, 814 (2000). The Court did so again, and just as frmly, in Ashcroft. Cite as: 606 U. S. 461 (2025) 509

care should be able to devise a regulatory means of achieving its objective consistent with the First Amendment. The frst part of the strict-scrutiny test is here easy to meet. The majority is right that a State has a compelling interest in shielding children from the obscene-for-children materials that H. B. 1181 covers. See ante, at 496. This Court has said as much before. See Sable, 492 U. S., at 126 (recognizing a “compelling interest in protecting the physical and psychological well-being of minors,” which “extends to shielding” them from materials “not obscene by adult stand- ards”); Denver Area, 518 U. S., at 743 (plurality opinion) (not- ing that the interest in “protect[ing] children from exposure to patently offensive sex-related material” is “one that this Court has often found compelling”). And a State is entitled to think that the need has become only more urgent over the years, given the time children now spend online and the materials they can fnd there. See ante, at 491. The critical question, then, is whether the State can show that it has limited no more adult speech than is necessary to achieve its goal. Or said another way (in fact, Ashcroft's way), whether the State can show that “the proposed alter- natives will not be as effective as the challenged statute.” 542 U. S., at 665. If the State cannot, the statute should not take effect, because it would limit protected speech unneces- sarily. There would be every reason to make the State switch to a less-speech-restrictive, equally-or-more-effective regulatory mechanism. But a State that has closely at- tended to the speech consequences of its regulation might well make the required showing in this sphere. Given how the internet works, no court should expect that a law effec- tively shielding children from sexually explicit expression could leave adults wholly unaffected. To the contrary, such a law will almost necessarily impose corollary burdens. And Texas may be right that the commonly proposed alter- natives to laws like H. B. 1181—such as content fltering technology—cannot equal, or even approach, age verifcation 510 FREE SPEECH COALITION, INC. v. PAXTON

systems in effectiveness. See Brief for Respondent 37–38. In that event, those alternatives will be irrelevant to the inquiry, and a court will explore only whether another, equally effective age verifcation mechanism will place a lesser burden on protected speech. Review of that kind should not be the horror show for Texas and other States that the majority maintains. See ante, at 483–485. It is just what they should have to pass before implementing a content-based burden on protected expression.

II How does the majority reach a different result? The analytic path of today's opinion is winding, but I take the majority to begin with a conviction about where it must not end—with strict scrutiny. The majority is not so coy about this backwards reasoning. To the contrary, it defends it. See ante, at 494. The “legitimacy” of age verifcation schemes for sexually explicit speech, the majority tells us, is “uncontroversial” (despite Reno and Ashcroft). Ante, at 494. And “[a]pplying the more demanding strict-scrutiny standard would call” those schemes “into question.” Ante, at 483. Ergo, its conclusion. I have just explained why the majority's fear is overblown—why in fact carefully drawn age verifcation laws stand a real chance of surviving strict scrutiny. But suppose I am wrong. Suppose there are both less speech-restrictive and equally effective ways to accom- plish the State's goal of protecting children from sexually explicit materials. In that event, strict scrutiny tells us, the State should use those constitutionally superior alternatives. And why argue with that? The usual way constitutional re- view works is to fgure out the right standard (here, strict scrutiny because H. B. 1181 is content-based), and let that standard work to a conclusion. It is not to assume the con- clusion (approve H. B. 1181 and similar age verifcation laws) and pick the standard sure to arrive there. But that is what the majority does. To answer what standard of scrutiny ap- Cite as: 606 U. S. 461 (2025) 511

plies, the majority frst spends four pages lauding age verif- cation schemes as “common,” “traditional,” “appropriate,” and “necessary.” Ante, at 478–482. In other words, all over the place, and a good thing too. No wonder the major- ity doesn't land on strict scrutiny. The more puzzling question is how the majority's reason- ing fts with the idea that the First Amendment plays any role at all. For quite some time in today's opinion, speech rights are pushed to the sidelines, or entirely off the feld. Age verifcation schemes are just age verifcation schemes— again, “common,” “traditional,” “appropriate,” and “neces- sary.” Ibid. States use them to regulate purchases of liq- uor and lottery tickets and freworks. And so, the majority says, States can also use them to regulate access to speech that is obscene for children. The power to prevent minors from gaining access to that speech “necessarily includes” the power to require proof of age. Ante, at 478. And that means, the majority concludes, that “accessing material ob- scene to minors without verifying one's age is not constitu- tionally protected,” even for adults. Ante, at 483 (emphasis deleted). It would seem the analysis is complete. If the First Amendment does not protect adults in viewing obscene-for-children materials unimpeded by age verifca- tion, as the majority argues, then how could there be any constitutional objection to age verifcation laws like H. B. 1181? Or said otherwise, why would those laws have to sat- isfy any heightened constitutional standard, whether strict or intermediate? We have apparently arrived at a place where States can act free of all constitutional scrutiny. But that cannot be, for reasons that by now should sound familiar. As discussed earlier, speech that is obscene for children is often not obscene for adults. See supra, at 503. When that is so, the First Amendment protects adults' ac- cess to obscene-for-children speech (unlike to liquor, lottery tickets, or freworks). Or otherwise said, the First Amend- ment gives them a right in that expression. And because of 512 FREE SPEECH COALITION, INC. v. PAXTON

that protected right, different rules apply. Without a spe- cial justifcation, a State cannot prohibit, tax, impede, or oth- erwise burden an adult's access to obscene-for-children speech. And an age verifcation requirement is a kind of burden. It may be smaller or larger—compare fashing ID in a store with (in the majority's own example) having to produce “an affdavit from [a] biological parent.” Ante, at 495. It may be a simple inconvenience or it may, as sug- gested earlier, prevent individuals from exercising the right. See supra, at 503–504. And those differences may well mat- ter to the conclusion when a court gets around to applying the appropriate constitutional standard. But regardless, an age verifcation mandate burdens an adult's First Amend- ment protected right in viewing obscene-for-children expres- sion. So a State's power to prohibit that speech for minors does not “necessarily include[ ],” as the majority contends, the power to mandate age verifcation. Ante, at 478. It might or might not, depending on whether the mandate satis- fes the constitutional scrutiny that its burden on protected speech requires. And in the end, the majority has to accept some version of that argument. For page upon page, the majority explains that the First Amendment has nothing to say about age veri- fcation schemes attached to obscene-for-children speech. See ante, at 478–482. Again, that speech may as well be liquor, lottery tickets, or freworks, for all it matters to the “States' authority.” Ante, at 478. And then, in the space of one brief paragraph, the idea falls apart. Yes, the major- ity at last concedes, “[a]dults have the right to access speech that is obscene only to minors.” Ante, at 482. And yes, the majority admits, “submitting to age verifcation is a burden on the exercise of that right.” Ante, at 483. So sure, the majority acknowledges, a really onerous age verifcation scheme—like its parental affdavit requirement—would funk constitutional review. See ante, at 495. And so too, the ma- jority says, even the least onerous mandate, like the one in Cite as: 606 U. S. 461 (2025) 513

Ginsberg v. New York, 390 U. S. 629, 633, 643–644 (1968), to show ID in a store, has to satisfy some form of heightened constitutional scrutiny. See ante, at 486, 495.2 There is no getting around the fact: Obscene-for-children speech is con- stitutionally protected speech for adults. See ante, at 482– 483. And age verifcation schemes “burden[ing]” adults' “right[s] to access [that] speech” are in fact not the kind of everyday, “appropriate,” and “necessary” regulation courts can wave on by. Ante, at 478–483. The Constitution, con- trary to what the majority at frst assured us, is now very much in the picture. At that point, one might think, the right approach—as the Court once said—“should be clear: The standard is strict scrutiny.” Playboy, 529 U. S., at 814. Forgive a brief recap. H. B. 1181 regulates the communicative content of websites, imposing an age verifcation mandate on those ex- hibiting a specifed amount of sexually explicit speech that, while obscene for children, is protected for adults. So the law directly burdens adults' right to view speech based on its sexual content. As the Court four times before found, that means strict scrutiny applies—even though the State is attempting to prevent the speech from reaching minors. See supra, at 502–508. The majority tries to escape that conclusion with a maneu- ver found nowhere in the world of First Amendment doc- trine. It turns out, the majority says, that the First Amendment only “partially protects” the speech in question: The “speech is unprotected to the extent the State seeks

2 The majority acknowledges that Ginsberg itself never addressed whether, or what kind of, constitutional scrutiny is appropriate for age verifcation laws applying to speech. See ante, at 486, 495. The many cites to Ginsberg in the majority opinion function mainly as atmosphere, to remind the reader that age verifcation mandates may impose only a trivial burden on speech rights. See ante, at 479–480, 483–486, 494. Which of course is true—just as it is true that they may impose a signif- cant one. See ante, at 495; supra, at 503–504. 514 FREE SPEECH COALITION, INC. v. PAXTON

only to verify age.” Ante, at 482, 493, n. 12 (emphasis de- leted); see ante, at 492 (the speech is “unprotected to the extent that the State imposes only an age-verifcation re- quirement”). Meaning, the speech is unprotected to the ex- tent that the State is imposing the very burden under re- view. Or said another way, the right of adults to view the speech has the burden of age verifcation built right in. That is convenient, if altogether circular. In the end, the majority's analysis reduces to this: Requiring age verifca- tion does not directly burden adults' speech rights because adults have no right to be free from the burden of age verif- cation. Gerrymander the right to incorporate the burden, and the critical conclusion follows. If only other First Amendment cases were so easy! Still, the majority must make one more move to square the circle of all it has said. Recall that notwithstanding the above, the majority has conceded that “[a]dults have the right to access” obscene-for-children speech and age verif- cation schemes are “a burden on the exercise of that right.” Ante, at 482–483; see supra, at 512–513. To account for that concession in its analysis—and yet avoid strict scrutiny, as it wishes—the majority relies on a well-known distinction in First Amendment law between direct and incidental restric- tions on speech. See (sorry) E. Kagan, Private Speech, Pub- lic Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 491–505 (1996). Says the majority: The “burden experienced by adults” as a result of H. B. 1181 is “only incidental to the statute's regula- tion of activity that is not protected by the First Amend- ment.” Ante, at 483. Or more fully (prepare for a mouth- ful): “ The law directly regulates unprotected activity (accessing material that is obscene to minors without sub- mitting to age verifcation) while only incidentally burden- ing protected activity (ultimately accessing that material).” Ante, at 492 (emphasis in original). And because the burden imposed on adults' right to access the materials is only inci- Cite as: 606 U. S. 461 (2025) 515

dental, the majority concludes, only intermediate scrutiny need apply. To back up that view, the majority relies (exclu- sively) on United States v. O'Brien, 391 U. S. 367 (1968). See ante, at 483, 492. O'Brien actually seems a good place to start in explaining why H. B. 1181 is not an incidental restriction under our law. In that case, a war protester who burned his draft card was charged with violating a statute that made it a crime for anyone to “knowingly destroy[ ],” “mutilate[ ],” or “change[ ]” draft registration documents. 391 U. S., at 370 (emphasis deleted). The Court assumed that O'Brien himself had en- gaged in expressive conduct: By burning his draft card on the steps of a government building, he was communicating opposition to the Vietnam War. See id., at 369–370, 376. But the law O'Brien broke was not about speech; it was about conduct. That law, the Court explained, prohibited all alterations of draft cards, indifferent to whether they were “public [or] private,” expressive or non-expressive. Id., at 375. So the “limitation[ ] on [O'Brien's] First Amend- ment freedoms” was purely “incidental.” Id., at 376. And because that was so—because the statute at issue addressed only the “noncommunicative aspect” of what O'Brien did— the Court decided to apply intermediate scrutiny. Id., at 381–382. In the years since, this Court has used the O'Brien view of incidental restrictions in several analytically identical cases—when a limitation on conduct, “having no connection with speech,” happens to sweep in a person's expressive act. Id., at 375. In one, the National Park Service invoked a regulation that banned camping (defned to include sleeping) in designated parks to prevent a sleep-in demonstration about homelessness. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 289–291 (1984). The Court ap- plied the O'Brien standard and approved the Park Service's action. In another, a law against “reenter[ing] a military base after having been barred by the commanding offcer” 516 FREE SPEECH COALITION, INC. v. PAXTON

was used to charge a person who had reentered a base to participate in a political demonstration. United States v. Albertini, 472 U. S. 675, 677–678 (1985). We upheld the con- viction under O'Brien. And in a third, the question was whether a law banning public nudity could be applied to an establishment featuring “expressive” nude dancing. Erie v. Pap's A. M., 529 U. S. 277, 289 (2000) (plurality opinion). Once again, we understood the case as in the O'Brien line, because a prohibition of conduct had an “incidental” effect on an expressive act. 529 U. S., at 294–295, 301. So we used the O'Brien standard, and approved the nudity ban's application. None of this has any bearing on H. B. 1181. That statute is not a regulation of conduct that just so happens, on occa- sion, to impinge on expressive activity. It is instead a direct regulation of speech, triggered by the amount of sexually explicit expression on a commercial website. Or said a bit differently: Rather than address the “noncommunicative” as- pects of an activity—as all the laws described above did— H. B. 1181 regulates (and regulates only) what no one here disputes are communicative messages. O'Brien, 391 U. S., at 382. Consider: a law about altering draft certifcates; a law about sleeping in parks; a law about reentering military bases; a law about public nudity; a law about sexually explicit postings on websites. Which one of those laws is not like the others? As to the frst four laws, the regulation is of conduct, and the burden on expression a rare knock-on effect. As to the ffth, the regulation is of speech, and the burden on that speech the very thing the statute does. See Holder v. Humanitarian Law Project, 561 U. S. 1, 27 (2010) (noting that O'Brien applies only when the “thing actually at issue” is “conduct”). The burden H. B. 1181 imposes, of course, raises constitutional concerns only for adults. But that fact does not make the law any less a direct, not incidental, re- striction on protected expression. H. B. 1181 targets com- municative content, and that alone—restricting adults' ac- Cite as: 606 U. S. 461 (2025) 517

cess to speech because of what it portrays, rather than because of any non-communicative element that it possesses. And this Court, in four prior cases involving similar regu- lations enacted for similar reasons, has not once proposed an analogy to O'Brien. Forgive another brief recap. See supra, at 505–508. In all of those cases, States burdened protected speech for adults as a way of cutting off children's access to the expression. Two of those efforts involved in- ternet speech. The same two made liability for infractions turn on whether the publisher of the speech used an age verifcation measure. One of them—Ashcroft—defned the regulated speech identically to H. B. 1181 (using the Miller test adapted for minors). Yet in none of the four cases did even a single Justice foat the idea that, because the restric- tion was geared toward protecting minors or involved age verifcation, the statute somehow effected only an incidental restriction. In every one, it was common ground (even among the dissenting Justices) that the statute's restriction on adults' access to speech was direct. So our precedents stand as an embarrassment to the majority's reasoning. The majority's primary—and defcient—response is that those cases involved “outright bans” on speech, whereas this one involves only a burden. Ante, at 489; see ante, at 485– 489. To begin with, that assertion is factually inaccurate as to three of the four. In Playboy, the law did not ban adult cable channels, but instead limited their transmission to hours when children were unlikely to be in the audience. See 529 U. S., at 806, 812. (The allowable hours were 10 p.m. to 6 a.m.—when, the District Court found, between 50% and 70% of adult viewing occurs anyway. See ibid.) So as the Court took care to explain, the statute did “not impose a complete prohibition.” Id., at 812. Rather, it effected only a “content-based burden[ ]”—as H. B. 1181 does. Ibid.3 3 The majority does not know what to do with the Playboy Court's de- scription, so merely asserts that channeling adult programming to evening hours is a “ban[ ].” Ante, at 487, n. 9. But why? If a park's hours were 518 FREE SPEECH COALITION, INC. v. PAXTON

The same is true of the statutes in Reno and Ashcroft, and in a way even more similar to Texas's law. Recall that under those statutes, publishers using age verifcation meas- ures had an affrmative defense to all liability. See supra, at 505–508. So as long as those measures were in place, publishers could confdently press send on whatever sexual content they wanted to transmit. The majority argues that H. B. 1181 is yet more protective of publishers, because it turns the affrmative defense into an element—putting the burden on the State to show the absence of age verifcation measures. See ante, at 488–489. But in this context, the difference between an affrmative defense and an element is but a smidge: It will matter only when a jury thinks the presence (or absence) of age verifcation is a literal toss-up (which in the real world will be rare). And even if the dif- ference is more than I think, it is one between two points on a continuum—not (as the majority insists) the dividing line between a “ban” and a “burden” on speech. Much more important, the distinction between bans and burdens makes no difference to the level of scrutiny. When a statute draws lines based on the content of speech, strict scrutiny is required regardless of the amount of speech af- fected. Playboy made that point, in this context, at some length. “It is of no moment” to the level of scrutiny, the Court stated, that a law restricting speech “does not impose a complete prohibition.” 529 U. S., at 812 (emphasis added). And if that weren't clear enough: “The Government's content-based burdens must satisfy the same rigorous scru- limited to between 9 a.m. and 9 p.m., is there really a “ban” on entering the park? Does it matter when people typically use the park—or watch adult programming? If so, where is the tipping point? Questions like these may not have easy answers (which is one good reason not to make too much ride on the ban/ burden line, see infra, at 518–519). But the important point here is that Playboy understood the statute before it as imposing only a burden, not a ban—and still applied strict scrutiny. So its analysis—not its “dicta,” but its so-called ratio decidendi—refutes the majority's position. Ante, at 487, n. 9. Cite as: 606 U. S. 461 (2025) 519

tiny as its content-based bans.” Ibid. And if that weren't clear enough: When a statute regulates expressive content, no “special consideration” is given to the government “merely because the law can somehow be described as a bur- den rather than outright suppression.” Id., at 826. What's more, Playboy is not alone in repudiating the majority's rea- soning. The refusal to countenance the ban/ burden line the majority today peddles is fundamental to our free speech doctrine. Take any subject—say, because it is close to home, the Supreme Court. Ban speech about the Court; tax speech about the Court ($20 a pop); limit speech about the Court to certain times (Tuesdays and Thursdays); or (as here) demand identifcation to gain access to websites ad- dressing the Court. Ban or burden, the level of scrutiny is the same: strict. See, e. g., Turner, 512 U. S., at 642 (stating the rule); Sorrell v. IMS Health Inc., 564 U. S. 552, 565–566 (2011) (same); see also, e. g., Reed, 576 U. S., at 159, 172 (ad- hering to the rule when reviewing mere burdens); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991) (same). So the principal distinction the majority draws between this case and the four that should control it is a non-distinction, by command of how we have always understood the First Amendment. That leaves only the majority's claim—again mistaken— that the internet has changed too much to follow our prece- dents' lead. See ante, at 489–491. Of course technology has developed, both swiftly and surely. And that fact might matter (as indeed the burden/ ban distinction might) to how strict scrutiny applies—and particularly to whether the State can show it has adopted the least speech-restrictive means to achieve its goal. Ashcroft explicitly recognized that point: It thought that, given the pace of technological change, the District Court might make a different decision than it had fve years earlier about whether there were “less restrictive alternative[s]” to COPA. 542 U. S., at 671–672. To that extent—but to that extent only—the majority is 520 FREE SPEECH COALITION, INC. v. PAXTON

right that Ashcroft was “self-consciously narrow and fact- bound.” Ante, at 490. Not, though, as to the level of scru- tiny. On that question, the Court was unequivocal that be- cause COPA was “a content-based speech restriction,” it must satisfy the strict-scrutiny test. 542 U. S., at 665; see supra, at 507–508, and n. 1. For that was a matter of basic First Amendment principle. And as this Court has under- stood: “Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of the First Amendment do not vary.” Moody v. NetChoice, LLC, 603 U. S. 707, 733 (2024) (quoting Brown v. Entertainment Merchants Assn., 564 U. S. 786, 790 (2011)); see TikTok Inc. v. Garland, 604 U. S. 56, 82 (2025) (Gorsuch, J., concurring in judgment) (“[E]ven as times and technologies change, `the principle of the right to free speech is always the same' ” (quoting Abrams v. United States, 250 U. S. 616, 628 (1919) (Holmes, J., dissenting))). Except that those basic principles do vary today. III The last part of the majority's opinion—plus some of its footnotes—shows why all this matters. In concluding that H. B. 1181 passes constitutional muster, the majority states (correctly) that under intermediate scrutiny Texas need not show it has selected the least speech-restrictive way of ac- complishing its goal. See ante, at 496. Even if there were a mechanism that (1) as well or better prevented minors' access to the covered materials and (2) imposed a lesser bur- den on adults' ability to view that expression, Texas could spurn that “superior” method. Ante, at 498. Likewise, the majority—because it is applying a more forgiving stand- ard—can ignore a host of questions about how far H. B. 1181 burdens protected expression. See Tr. of Oral Arg. 67–68. In the fne print of two footnotes, the majority declares that it has no need to explore (1) whether H. B. 1181 requires covered websites to demand age verifcation for all their con- Cite as: 606 U. S. 461 (2025) 521

tent or only for the subset that is obscene for minors; (2) whether H. B. 1181 requires that covered speech be ob- scene “only to a minor (including a toddler)” or “to all minors (including 17-year-olds)”; and (3) whether H. B. 1181 permits websites to use “newer biometric methods of age verifca- tion, like face scans,” that pose fewer privacy concerns than submitting government ID and transactional data. Ante, at 481, n. 7 (emphasis in original); ante, at 498, n. 14. The ma- jority explains that even if Texas answered each of those questions in a maximally burdensome way—requiring gov- ernment ID to view speech that is protected even for chil- dren because one-third of the website's contents are obscene for two-year-olds—H. B. 1181 can go forward. And again, that is true even if Texas has a less burdensome way of “equally or more effective[ly]” achieving its objective. Ante, at 497. I would demand Texas show more, to ensure it is not un- dervaluing the interest in free expression. Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults' First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A State may not care much about safe- guarding adults' access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children. That is what we have held in cases indistinguishable from this one. And that is what founda- tional First Amendment principles demand. Because the majority departs from that right and settled law, I respect- fully dissent. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

p. 476, lines 7–8: “Children's Online Privacy Protection Act of 1998” is changed to “Child Online Protection Act”