Not Big Brother, Just a Safeguard for Children: The Supreme Court’s Take on Online Porn Laws

By: Brylee Gnant

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Censorship in the digital world raises difficult constitutional questions. How far can the government go in restricting minors’ access to online pornography without infringing on adults’ First Amendment rights to free speech? This issue was at the center of the U.S. Supreme Court’s June 27, 2025, decision in Free Speech Coalition, Inc. v. Paxton. In that case, the Court upheld Texas’s H.B. 1181, a statute requiring adults to submit their government-issued identification to access online pornographic content. Free Speech Coal., Inc. v. Paxton, 606 U.S. 461 (2025).

In my view, the Court’s decision is sound. The holding in Free Speech Coalition affirms two important principles. First, constitutional challenges implicating First Amendment free speech are subject to intermediate scrutiny when the regulation is directed at protecting minors and only incidentally affects adult access to protected expression. Id. at 467. Second, the Court determined that H.B. 1181 is constitutionally permissible because requiring adults to submit government-issued identification to access pornographic websites imposes only an incidental burden that does not impede adults’ First Amendment rights. Id. at 472.

The Court’s discussion in this case contemplates whether the government overstepped by effectively acting as a “parent” in restricting minors’ access to pornography. Id. at 477. One might argue that it should be the responsibility of parents to monitor their children’s online activity. To a certain extent, that is true. Yet the reality is that over 95% of teens ages thirteen to seventeen now own or have access to internet-enabled smartphones, and even the most tech-savvy parents struggle to keep up. Id. at 464. Parental codes and content blockers can be bypassed, and some parents are unaware that these tools even exist.

Furthermore, H.B. 1181 does not restrict what adults can view, nor does it dictate what parents must allow their children to access. Id. at 474. Instead, the statute creates a baseline that complements parental efforts. The government is not acting as a parent, but as a partner providing an additional safeguard against minors’ exposure to pornography. Id. at 462. Most parents would agree they do not want their children consuming or becoming addicted to this type of content. In that respect, the Court reached the correct conclusion: H.B. 1181 is constitutionally sound and serves the important purpose of protecting minors from easy access to online pornography. Id. at 480.

However, the majority’s choice of scrutiny is debatable. The Court applied the intermediate scrutiny standard, requiring the government to show (1) an important or substantial governmental interest, and (2) that the law does not burden substantially more speech than necessary. Id. at 477. The dissent, however, correctly argued that strict scrutiny should apply. Id. at 500. Under strict scrutiny, the government must prove (1) a compelling interest, and (2) that the law is the least restrictive means of achieving it. Id. at 467. Simply, intermediate scrutiny is a less demanding standard, while strict scrutiny is the toughest check courts use for cases involving core constitutional rights, like free speech. 

Justice Kagan persuasively reasoned that “this Court should subject H.B. 1181 to strict scrutiny. That is because H.B. 1181 covers speech constitutionally protected for adults; impedes adults’ ability to view that speech; and imposes that burden based on the speech’s content. Case closed.” Id. at 485 (Kagan, J., dissenting). Historical precedent supports the application of strict scrutiny. In Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), the Court applied strict scrutiny to a case involving content-based regulation of speech. Similarly, in Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 661 (2004), the Court applied strict scrutiny to the Child Online Protection Act’s age-verification requirement. Strict scrutiny does not depend on whether a law bans or merely burdens speech; it is triggered whenever a core constitutional right, such as free speech, is at stake.

Even so, I believe H.B. 1181 would survive strict scrutiny. Protecting minors from harmful sexual content is a compelling interest recognized by the Court, and age verification is arguably the least restrictive and most effective method available to achieve that goal. While parental controls and content filters provide some protection, they are easily bypassed. For that reason, H.B. 1181 would likely satisfy the demanding requirements of strict scrutiny. Although the Court ultimately reached the correct outcome, it arguably cut corners on the government’s evidentiary burden by applying intermediate rather than strict scrutiny. In cases involving First Amendment rights, the highest level of scrutiny should be applied.

Beyond the question of scrutiny, concerns remain that H.B. 1181’s verification process could chill adult speech by creating embarrassment or privacy risks. Paxton, 606 U.S. at 487. While understandable, those worries pale in comparison to the government’s compelling interest in shielding minors from harmful online content.

Society already accepts identification requirements for other age-restricted activities such as buying alcohol, tobacco, lottery tickets, entering adult theaters, and historically purchasing porn magazines or videos from brick-and-mortar stores. Online access is no different. In fact, third-party verification online can make the process more anonymous than in-person purchases. Moreover, the social stigma around pornography adds an interesting wrinkle. If someone is hesitant to attach their name to their online porn activity, it may reflect an internal recognition that the activity carries moral disapproval. That stigma does not justify banning adult access, but it supports the idea that requiring verification is a reasonable hurdle. If shame deters someone from engaging with such content, it may be a sign that individuals should engage in more constructive forms of entertainment.

Critics have also warned that rulings like Free Speech Coalition mark the beginning of a slippery slope toward government overreach or a so-called “Big Brother” takeover straight out of Orwell’s 1984. Id. at 488. That fear is unwarranted. H.B. 1181 is not a dystopian first step. Unlike blanket bans or invasive surveillance, the statute targets only content deemed obscene for minors. Importantly, H.B. 1181 does not restrict adult access; rather, it imposes a familiar requirement of age verification. This is far from Orwellian thought policing—it is a modern update to long-standing regulatory norms that have historically governed access to adult material in physical spaces. The difference is simply that the medium has shifted online, while the regulatory principle remains the same.

In conclusion, H.B. 1181 and the Supreme Court’s decision upholding its framework are sound. The law respects adult free speech, protects minors from obscene content, and imposes only an incidental burden on adult users. Id. at 480. In an age where kids carry the internet in their pockets, government intervention of this kind is less “censorship” and more “protection.” The digital world complicates traditional First Amendment analysis, but this ruling shows that careful regulation can coexist with constitutional freedoms. Age verification, already a well-established requirement, is simply being extended into the digital world. As more aspects of daily life migrate online, it is both expected and appropriate that regulatory frameworks will adapt accordingly.