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Free Speech Coalition, Inc. v. Paxton

Texas, like many States, prohibits distributing sexually explicit content to children. In 2023, Texas enacted H. B. 1181, requiring certain commercial websites publishing sexually explicit content that is obscene to minors 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 scrutiny because it only incidentally burdens the protected speech of adults.

Read by RJ Dieken.