11 Unprotected Categories: Obscenity

A New Direction in Obscenity Jurisprudence?
In contrast to other areas of First Amendment law, obscenity jurisprudence has been reasonably static in the past few decades, with Miller continuing to serve as the primary test for obscenity and cases such as Reno dictating a fairly unregulated internet. In 2025, however, the Court decided a case that might signal a willingness to tighten obscenity protections, particularly when the aim is to prevent children from viewing obscene content.

Among a flurry of conservative-leaning laws regulating social media and the internet (see Chapter 12), Texas passed a law requiring websites that present pornographic content to require some form of age verification (either using a third-party vendor or by requiring some form of government-issued ID). In doing so, it joined several other conservative states that had passed similar laws. Importantly, the definition of what was covered by the Texas statute was not just material under the Miller standard, but sexual content harmful to minors, presumably a broader category of material than what Miller would cover. Imagine, for example, the content in television shows like Game of Thrones or Euphoria. However, the law only applies to websites where more than “one-third” of the material is “harmful to minors.”

A trade association for pornography sites challenged the law, arguing that it was unconstitutional because the age verification requirement burdened the speech rights of adults who could legally view the material in question (again, the law here regulated more than just the material covered by Miller). The primary legal argument here was over which standard of constitutional review the courts should use to assess this law. The plaintiffs argued that, as had been true in earlier cases such as Reno, the courts must apply strict scrutiny. Texas, by contrast, argued the regulated material was unprotected as applied to minors, and thus only merited rational-basis review.

Free Speech Coalition v. Paxton

 606 U.S. ___ (2025)

Facts: Texas passed H.B. 1181, which regulated websites for which more than one-third of their presented content was sexual material harmful to minors. The main requirement of the law was that regulated websites adopt some type of age verification system to ensure minors could not view the material. Material “harmful to minors” was defined more broadly than the test from Miller, making clear that, alongside obscene pornography, the law would regulate material that was not obscene under Miller but still proscribable to minors.

Plaintiffs sued, arguing the age verification requirement burdened adults who had the right to view the material in question. The district court agreed with plaintiffs that the law failed strict scrutiny (primarily on the least restrictive means requirement). The Fifth Circuit overturned, agreeing with Texas that the law regulated unprotected content (as applied to minors), and that under rational basis review, the state thus had the power to prevent minors from viewing that content even if doing so created a burden on adults.

Question: Is the age requirement in H.B. 1181 constitutional under the First Amendment?

Vote: Yes, 6-3

For the Court: Justice Thomas

Dissenting opinion: Justice Kagan

JUSTICE THOMAS delivered the opinion of the Court.

Texas, like many States, prohibits the distribution of sexually explicit content to children. 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, which requires certain commercial websites that publish sexually explicit content to verify the ages of their visitors. This requirement furthers the lawful end of preventing 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 unconstitutional under the Free Speech Clause of the First Amendment. We hold that they do not. The power to require age verification 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 pornographic 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.” According to the sponsors, such pornography is “addictive,” has harmful “developmental effects on the brain,” and leads to “risky sexual behaviors.” 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 knowingly and intentionally publishes or distributes material on an Internet website, . . . more than one-third of which is sexual material harmful to minors.” The statute defines “‘[s]exual material 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, displays, or depicts “in a manner patently offensive with respect to minors” various sex acts and portions of the human anatomy, including depictions of “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, [and] excretory functions”; and (3) “lacks serious literary, artistic,  political,  or  scientific  value  for  minors.”

H.B. 1181 requires a covered entity to “use reasonable age verification methods . . . to verify that an individual attempting to access the material is 18 years of age or older.” To verify age, a covered entity must require visitors to “comply with a commercial age verification system” that uses “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” The entity may perform verification itself or through a third-party service…

B

Soon after Texas enacted H.B. 1181, a trade association for the pornography industry, a group of companies that operate pornographic websites, and a pornography performer sued the Texas attorney general. These plaintiffs, petitioners here, sought to enjoin enforcement of the statute as facially unconstitutional under the Free Speech Clause of the First Amendment. They alleged that adults have a right to access the speech covered by H. B. 1181, and that the statute impermissibly hinders them from doing so…

II

To determine which standard of First Amendment scrutiny applies to Texas’s age-verification law, we must first review some background principles about the First Amendment. Specifically, we must focus on what the First Amendment generally protects, the extent to which it permits 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 “abridging the freedom of speech.” As “a general matter,” this provision “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” But, this principle “is not absolute.” To determine whether a law that regulates speech violates the First Amendment, we must consider both the nature of 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 justified only if” they satisfy strict scrutiny. That standard requires that a law be “the least restrictive means of achieving a compelling state interest.”

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 viewpoints from the public dialogue.” 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.”

At the same time, not all speech is protected. “‘From 1791 to the present,’” certain “‘historic and traditional categories’” of speech—such as “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct”—have been understood to fall outside the scope of the First Amendment. States generally may prohibit speech of this kind without “rais[ing] any Constitutional problem.” Such prohibitions are subject only to rational-basis review, the minimum constitutional standard that all legislation must satisfy. Under that standard, a law will be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis” for its enactment.

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…

Our precedents hold that speech is obscene to the public at large—and thus proscribable—if … [it passes] “the Miller test.”

Miller does not define the totality of States’ power to regulate sexually explicit speech, however. In addition to their general interest in protecting the public at large, States have a specific interest in protecting children from sexually explicit 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.” Similarly, many early obscenity statutes targeted for special regulation works “manifestly tending to the corruption of the morals of youth.” This trend continued through the time of the Fourteenth Amendment’s ratification, with States routinely enforcing statutes that punished indecent publications on the ground that they corrupted “the morals of youth.”

Consistent with this history, our precedents recognize that States can impose greater limits on children’s access to sexually explicit speech than they can on adults’ access…

When regulating minors’ access to sexual content, the State may broaden Miller’s “definition of obscenity” to cover that which is obscene from a child’s perspective. 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 specifically defined sexual conduct in a way that is patently offensive for minors; and (c) taken as a whole, lack serious literary, artistic, political, or scientific value for minors.   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.”

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 obscene only to minors. But, it may enact laws to prevent minors from accessing such content.

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 (1997), we … held that the CDA violated the First Amendment because it “effectively suppresses a large amount of speech that adults have a constitutional right to receive.” The CDA’s age-verification defense was illusory because, in many cases, “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.” And, even as to minors, the CDA swept far beyond obscenity. Fairly read, the terms “‘indecent’ ” and “‘patently offensive’” encompassed “large amounts of nonpornographic material with serious educational or other value.” The Act was thus a “content-based restriction” of protected speech that could not survive strict scrutiny.

After Reno, Congress passed the Children’s Online Privacy Protection Act of 1998 (COPA), which we addressed in Ashcroft v. American Civil Liberties Union (2004) (Ashcroft II). COPA criminalized posting “content that is ‘harmful to minors’” online for  “‘commercial purposes.’” The Act defined such content as material that is obscene under the Miller test, as adjusted to minors. It also provided “an affirmative defense to those who employ specified means to prevent minors from gaining access to the prohibited material on their website,” such as requiring the use of a credit card or a digital certificate that verifies age…

The parties agreed that COPA was subject to strict scrutiny. So too did this Court, which briefly noted that this was so because COPA “‘effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.’” We then focused our analysis on whether the Government had shown that it was likely to satisfy its burden under strict scrutiny. We held that it had not, because the Government had not ruled out that it could protect children just as well through less restrictive means of encouraging parents to install blocking and filtering software on their computers…

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.” With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content—both benign and obscene—at almost 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 protected speech. We think neither party has it right. Applying our precedents, we hold that intermediate scrutiny applies.

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.

1

Age-verification 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 obscene from their perspective. That power necessarily includes 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 speech that is obscene to minors without first 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 established in law, or in reason, than that . . . wherever a general power to do a thing is given, every particular power necessary for doing it is included.” … because the First Amendment 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 verification is common when a law draws lines based on age. For example, Texas, like many States, requires proof of age to obtain alcohol, tobacco, a lottery ticket, a tattoo, a body piercing, fireworks, and a driver’s license. Federal law similarly mandates age verification to obtain certain medications from a pharmacist, or to obtain employment as a minor. Fundamental rights that turn on age are no different. Texas, again like many States, requires proof of age to obtain a handgun license, to register to vote, and to marry. In none of these contexts is the constitutionality of a reasonable, bona fide age-verification requirement disputed.

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 verification: It permitted a seller who sold sexual material to a minor to raise “‘honest mistake’” as to age as an affirmative defense, but only if the seller had made “‘a reasonable bona fide attempt to ascertain the true age of [the] minor.’” Most States to this day also require age verification for in-person purchases of sexual material. And, petitioners concede that an in-person age verification requirement is a “traditional sort of law” that is “almost surely” constitutional…

The need for age-verification online is even greater. Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages. Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected…

2

Because H.B. 1181 simply requires proof of age to access content that is obscene to minors, it does not directly regulate the protected speech of adults. A law can regulate the content of protected speech, and thereby trigger strict scrutiny, either “on its face” or in its justification. 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 justified without reference to the [protected] content of the regulated speech,” because its apparent purpose is simply to prevent minors, who have no First Amendment right to access speech that is obscene to them, from doing so.

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. And, submitting to age verification is a burden on the exercise of that right. But, adults have no First Amendment right to avoid age verification, and the statute can readily be understood as an effort to restrict minors’ access. Any burden experienced by adults is therefore only incidental 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. 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 (1968). The prohibition may have had the effect of making it unlawful to protest the draft by burning one’s draft card. But, the “destruction” of a draft card is not itself “constitutionally protected activity,” because the card is a Government document that, among other functions, serves as proof of registration. The prohibition on destroying draft cards thus placed only an incidental burden on First Amendment expression, making it subject to intermediate scrutiny. So too here, because accessing material obscene to minors without verifying one’s age is not constitutionally protected, any burden H.B. 1181 imposes on protected 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-verification requirements, even longstanding requirements for brick-and-mortar stores… Petitioners insist that their proposed rule would not call into question these “traditional” requirements, because such requirements would “almost surely satisfy” strict scrutiny. They also contend that a sufficiently tailored online age-verification requirement (although not Texas’s) could satisfy strict scrutiny too. But, if we are not to compromise “‘[t]he “starch” in our constitutional standards,’” we cannot share petitioners’ confidence.

Strict scrutiny—which requires a restriction to be the least restrictive means of achieving a compelling governmental interest—is “the most demanding test known to constitutional law.” In the First Amendment context, we have held only once that a law triggered but satisfied strict scrutiny—to uphold a federal statute that prohibited knowingly providing material support to a foreign terrorist organization…

Strict scrutiny is unforgiving because it is the standard for reviewing the direct targeting of fully protected speech. Strict scrutiny is designed to enforce “the fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It succeeds in that purpose if and only if, as a practical matter, it is fatal in fact absent truly extraordinary circumstances. Strict scrutiny therefore cannot apply to laws, such as in-person age-verification requirements, which are traditional, widespread, and not thought to raise a significant First Amendment issue…

… The only principled 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 first principles, our precedents require us to apply strict scrutiny to H.B. 1181. Every case that petitioners cite involved a law that banned both adults and minors from accessing speech. But, this Court has never held that every content-based burden on adults’ access to speech that is obscene to minors always triggers strict scrutiny.

1

…

Petitioners invoke two pre-internet cases in which this Court applied strict scrutiny. In the first, the Court did so to invalidate “a blanket prohibition” on “dial-a-porn” phone messages that were “indecent but not obscene.” 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. 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 first.

Reno and Ashcroft II—our two decisions addressing attempts 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 entire universe of cyberspace” where the person knew a child would be among the recipients. And, although the CDA had an age-verification affirmative defense, that defense was illusory. In many cases, “existing technology did not include any effective method . . . to prevent minors from obtaining access . . . without also denying access to adults.” The CDA thus triggered— and failed—strict scrutiny because it “effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive” and to share. This kind of ban is categorically different from H.B. 1181’s age-verification requirement.

Ashcroft II likewise characterized COPA as a ban. COPA criminally prohibited posting “content that is ‘harmful to minors’” online for “‘commercial purposes,’” subject to an age-verification affirmative defense. 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.’” Because the parties agreed that strict scrutiny applied, the Court’s discussion of the applicable standard was brief. But, its wording was careful. The Government in Ashcroft II conceded that COPA triggered strict scrutiny because it “regulates expression… that is constitutionally protected for adults… on the basis of its content.” Petitioners make essentially that same argument here. Yet, the Court did not endorse this sweeping proposition; instead, it invoked the narrower ground that COPA outright “‘suppresse[d]’” speech between adults.

To be sure, COPA established an age-verification defense. But, because it did so only as an affirmative defense, COPA still operated as a ban on the public posting of material that is obscene to minors. This was so because an indictment need only “alleg[e] the necessary elements of an offense”; it need not “anticipate affirmative defenses.” 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-verification procedures. The same is not true under H.B. 1181, which makes the lack of age verification an element that the State must plead and prove.

2

Petitioners read Reno and Ashcroft II to establish a comprehensive framework to govern all future attempts to restrict 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 obscene to minors but not to adults…

The Court in Reno was quite concerned about the unique threat that the CDA posed to the development of the then-nascent internet…

Similarly, Ashcroft II was a self-consciously narrow and factbound decision. There, the Court reviewed a preliminary injunction based on a record that was “over five years” old, all while the “technology of the Internet” continued to “evolv[e] at a rapid pace.” As a result, we emphasized the abuse-of-discretion standard and made clear that we did not mean to rule definitively on COPA’s constitutionality…

In the quarter century since the factual record closed in Ashcroft II, the internet has expanded exponentially…

In contrast, in 2024, 95 percent of American teens had access to a smartphone, allowing many to access the internet at almost any time and place. Ninety-three percent of teens reported using the internet several times per day, and watching videos is among their most common activities online. The content easily accessible to adolescents online includes massive 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. 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. The Court in Reno and Ashcroft 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 precedential simply because technology has changed so dramatically. “But respect for past judgments also means respecting their limits.” It is misleading 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 difficult 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.

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.” 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 “restrictions” based on “content” without triggering strict scrutiny… The law is content based in the same way that prohibitions of “defamation,” “fraud,” and “incitement” are.

The dissent’s attempt to distinguish O’Brien and its progeny fails for the same reason. 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 burdens “expressive activity.” When speech has both protected and unprotected features, however, “the unprotected features of the [speech] are, despite their [communicative] character, essentially a ‘nonspeech’ element” for purposes of the First Amendment. R. A. V. v. St. Paul (1992).  With that principle in hand, H. B. 1181 fits comfortably within the O’Brien framework: The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification) while only incidentally burdening protected activity (ultimately accessing that material).

The dissent’s real point of disagreement is whether an age-verification requirement regulates the protected speech of adults… Because our previous decisions concerned only outright bans, this Court has never before considered whether lesser burdens aimed at distinguishing children from adults directly regulate any free speech right of adults.

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, includes the ordinary and appropriate means of exercising it. And, an age-verification 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 requiring age verification for in-person sales of material that is obscene to minors. Beyond misreading precedent, the dissent’s only other response to our reasoning is to assert that age verification is not necessarily included in the power to draw an age-based line because “an age verification mandate burdens an adult’s First Amendment” rights. That response simply assumes what the dissent sets out to prove…

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. 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. It would be perverse if we showed less regard for in-person age-verification requirements simply because their legitimacy is so uncontroversial that the need for a judicial decision upholding them has never arisen.

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 burden that age verification necessarily has on an adult’s First Amendment right to access speech that is obscene only to minors…

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 “affidavit” from the individual’s “biological parent.” That example is precisely the sort of manipulation of a legitimate kind of regulation that intermediate scrutiny can weed out but that rational-basis review cannot…

IV

A statute survives intermediate scrutiny 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.” H. B. 1181 readily satisfies these requirements.

A

H.B. 1181 undoubtedly advances an important governmental interest. Texas’s interest in shielding children from sexual content is important, even “compelling.” H.B. 1181 furthers that interest by preventing minors from easily circumventing a prohibition on their accessing sexual content. HB. 1181 is also sufficiently tailored to Texas’s interest. Under intermediate scrutiny, a regulation is adequately tailored so long as the government’s interest “would be achieved less effectively absent the regulation” and the regulation “does not burden substantially more speech than is necessary to further that interest.” The regulation “need not be the least restrictive . . . means of ” serving the State’s interest. Ward v. Rock Against Racism (1989). And, the regulation’s validity “‘does not turn on [our] agreement with the [legislature] concerning the most appropriate method for promoting significant government interests’ or the degree to which those interests should be promoted.”

Under this standard, requiring age verification online is plainly a legitimate legislative choice…

The specific verification methods that H.B. 1181 permits are also plainly legitimate. At present, H.B. 1181 allows for verification using government-issued identification or transactional data.   Verification can take place on the covered website itself or through a third-party service. Other age-restricted services, such as online gambling, alcohol and tobacco sales, and car rentals, rely on the same methods…

B

Petitioners’ counterarguments are unpersuasive. Petitioners contend that Texas could adopt less restrictive means of protecting children, such as encouraging parents to install content-filtering software on their children’s devices or requiring internet service providers to block adult content unless a household opts into receiving it. But, even assuming these approaches are equally or more effective, under intermediate scrutiny a “regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” …

Petitioners further argue that H.B. 1181 is not appropriately tailored, because it does not require age verification on other sites, such as search engines and social-media websites, where children are likely to find 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.’” Further, Texas has a reasonable basis for excluding these sites from H.B. 1181’s coverage. The statute does not contain any special exception for social-media sites. Rather, such sites fall outside the statute to the extent that less than a third of their content is obscene to minors. And, it is reasonable for Texas to conclude that websites with a higher proportion of sexual content are more inappropriate for children to visit than those with a lower proportion…

Petitioners next assert that privacy concerns and the unique stigma surrounding pornography will make age verification too chilling for adults. But, users only have to submit verification to the covered website itself or the third-party service with which the website contracts.   Both those entities have every incentive to assure users of their privacy. In any event, the use of pornography has always been the subject of social stigma. This social reality has never been a reason to exempt the pornography industry from otherwise valid regulation. And, the decades-long history of some pornographic websites requiring age verification refutes any argument that the chill of verification 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 important interest in shielding children from sexually explicit content. And, it is appropriately tailored because it permits users to verify their ages through the established methods of providing government-issued identification and sharing transactional data. The judgment of the Court of Appeals for the Fifth Circuit is affirmed.

It is so ordered.

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 minors. 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 unprotected speech—is narrower. 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 constitutional review, to laws regulating protected speech based on its content. And laws like H.B. 1181 fit that description: They impede adults from viewing a class of speech protected for them (even though not for children) and defined by its content. So when we have confronted those laws before, we have always asked the strict scrutiny question: Is the law the least restrictive means of achieving a compelling state interest? 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 interest. And Texas might be right in arguing that it has no less restrictive way to achieve that goal: It is difficult, as everyone 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’ constitutionally 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 context. The State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary.

… H. B. 1181’s requirements interfere with—or, in First Amendment jargon, burden—the access adults have to protected speech: Some individuals 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 intermediate scrutiny because it arises from an “incidental” restriction, given that Texas’s statute uses age verification to prevent minors from viewing the speech. Except that is wrong—nothing like what we have ever understood as an incidental restraint for First Amendment purposes. Texas’s law defines 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 content—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. 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…

I

Under ordinary First Amendment doctrine, 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. And making the right answer yet more obvious, we have said as much four times before, when reviewing statutes 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 question 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 protected by the First Amendment. We have, of course, often held that obscene speech, as defined in Miller v. California (1973), is not so protected. But H. B. 1181 does not use the ordinary Miller test (relating to prurience, offensiveness, 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.” And that child-centric category of speech extends wider than the traditional obscenity category.  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 fit for children.” Their right to view “[s]exual expression,” outside the traditional obscenity category, is “protected by the First Amendment.”

And H. B. 1181 impedes the exercise of that right… It imposes what our First Amendment decisions often call a “chilling effect.” It is not, contra the majority, like having to flash ID to enter a club. It is turning over information about yourself and your viewing habits—respecting speech many find 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 inadvertently, disclose the list of those who wish to watch the ‘patently offensive’ channel.”  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 system costing (the District Court found) at least $40,000 for every 100,000 verifications, or else pay penalties of $10,000 per day. Those expenses, Texas boasts, have already caused one major operator to exit the State’s market. 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,” making it quintessential content-based law…

All of that leads, under well-settled law, to just one conclusion: H. B. 1181 is subject to strict scrutiny…

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 prevent those materials from getting to minors. The laws at 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 [strict scrutiny was used].

Four times, one result. Which is not surprising, because it is the result that basic First Amendment principles command. 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…

The first 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. This Court has said as much before. 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 find there.

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 alternatives will not be as effective as the challenged statute.” If the State cannot, the statute should not take effect, because it would limit protected speech unnecessarily. 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 attended 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 law to effectively 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 alternatives to laws like H.B. 1181—such as content filtering technology—cannot equal, or even approach, age verification systems in effectiveness. In that event, those alternatives will be irrelevant to the inquiry, and a court will explore only whether another, equally effective age verification mechanism will place a lesser burden on protected speech..

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. The “legitimacy” of age verification schemes for sexually explicit speech, the majority tells us, is “uncontroversial” (despite Reno and Ashcroft). And “[a]pplying the more demanding strict-scrutiny standard would call” those schemes “into question.” Ergo, its conclusion… To answer what standard of scrutiny applies, the majority first spends four pages lauding age verification schemes as “common,” “traditional,” “appropriate,” and “necessary.” In other words, all over the place, and a good thing too. No wonder the majority doesn’t land on strict scrutiny.

The more puzzling question is how the majority’s reasoning fits 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 field. Age verification schemes are just age verification schemes—again, “common,” “traditional,” “appropriate,” and “necessary.” States use them to regulate purchases of liquor and lottery tickets and fireworks. 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. And that means, the majority concludes, that “accessing material obscene to minors without verifying one’s age is not constitutionally protected,” even for adults. It would seem the analysis is complete… 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… And an age verification requirement is a kind of burden. … So a State’s power to prohibit that speech for minors does not “necessarily include” as the majority contends, the power to mandate age verification. It might or might not, depending on whether the mandate satisfies 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 verification schemes attached to obscene-for-children speech. Again, that speech may as well be liquor, lottery tickets, or fireworks, for all it matters to the “States’ authority.” And then, in the space of one brief paragraph, the idea falls apart. Yes, the majority at last concedes, “[a]dults have the right to access speech that is obscene only to minors.” And yes, the majority admits, “submitting to age verification is a burden on the exercise of that right.” So sure, the majority acknowledges, a really onerous age verification scheme— like its parental affidavit requirement—would flunk constitutional review…

At that point, one might think, the right approach—as the Court once said—“should be clear: The standard is strict scrutiny.” …

The majority tries to escape that conclusion with a maneuver found nowhere in the world of First Amendment doctrine. 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 only to verify age.” Meaning, the speech is unprotected to the extent that the State is imposing the very burden under review. Or said another way, the right of adults to view the speech has the burden of age verification built right in. That is convenient, if altogether circular. In the end, the majority’s analysis reduces to this: Requiring age verification does not directly burden adults’ speech rights because adults have no right to be free from the burden of age verification. Gerrymander the right to incorporate the burden, and the critical conclusion follows. If only other First Amendment cases were so easy!

… Says the majority: The “burden experienced by adults” as a result of H.B. 1181 is “only incidental to the statute’s regulation of activity that is not protected by the First Amendment.” Or more fully (prepare for a mouthful): “The law directly regulates unprotected activity (accessing material that is obscene to minors without submitting to age verification) while only incidentally burdening protected activity (ultimately accessing that material).” And because the burden imposed on adults’ right to access the materials is only incidental, the majority concludes, only intermediate scrutiny need apply. To back up that view, the majority relies (exclusively) on United States v. O’Brien (1968).

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. The Court assumed that O’Brien himself had engaged in expressive conduct: By burning his draft card on the steps of a government building, he was communicating opposition to the Vietnam War. 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. So the “limitation on [O’Brien’s] First Amendment freedoms” was purely “incidental.” 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…

None of this has any bearing on H.B. 1181. That statute is not a regulation of conduct that just so happens, on occasion, 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…Consider: a law about altering draft certificates; 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 first four laws, the regulation is of conduct, and the burden on expression a rare knock-on effect. As to the fifth, the regulation is of speech, and the burden on that speech the very thing the statute does…

The majority’s primary—and deficient—response is that [earlier] cases involved “outright bans” on speech, whereas this one involves only a burden. To begin with, that assertion is factually inaccurate as to three of the four…

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 affected… “It is of no moment” to the level of scrutiny, the Court stated, that a law restricting speech “does not impose a complete prohibition.” And if that weren’t clear enough: “The Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” 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 burden rather than outright suppression.” … 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 identification to gain access to websites addressing the Court. Ban or burden, the level of scrutiny is the same: strict…

That leaves only the majority’s claim—again mistaken— that the internet has changed too much to follow our precedents’ lead. 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… Not, though, as to the level of scrutiny…

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 accomplishing its goal. Even if there were a mechanism that (1) as well or better prevented minors’ access to the covered materials and (2) imposed a lesser burden on adults’ ability to view that expression, Texas could spurn that “superior” method…

I would demand Texas show more, to ensure it is not undervaluing 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)… That is what we have held in cases indistinguishable from this one. And that is what foundational First Amendment principles demand. Because the majority departs from that right and settled law, I respectfully dissent.