Porn age-verification law upheld by Supreme Court.

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From our archives.

Today, we’re doing something a little different. We’re resurfacing a few older members-only posts from the archives, in the event you might find them in interesting:

• From 2023, my exploration of how dangerous pornography really is — a relevant piece for today.
• From 2022, my deep dive on whether Congress is really “in the pocket of the elite.” 
• From 2020, our first ever paywalled edition: My exploration of whether I’m actually just a biased hack!

Quick hits.

1. The official death toll from flooding in Central Texas has risen to 108. Rescuers are searching for many still missing, including ten girls and one counselor from Camp Mystic in Kerr County. (The latest)
2. President Donald Trump hosted Israeli Prime Minister Benjamin Netanyahu at the White House, where the two discussed a potential ceasefire deal in Gaza and a plan to relocate Gazans out of the strip. (The meeting)
3. President Trump said he would levy tariffs between 25% and 40% on imports from 14 countries starting August 1 as his administration continues to try to negotiate trade deals. The individual duties are similar to those originally announced in Trump’s “Liberation Day” tariffs. (The announcement)
4. Federal agents killed a gunman who opened fire at a Border Patrol facility in McAllen, Texas. One officer was injured in the shooting. (The incident)
5. Measles cases in the United States reached their highest level since 2000, the year the country eliminated the disease. The majority of cases are linked to an outbreak in the Southwest. (The cases)

Today’s topic.

Free Speech Coalition, Inc. v. Paxton. On June 27, the Supreme Court voted 6–3 to uphold a Texas law requiring pornography websites to verify the age of their visitors. The law, HB 1181, compels sites that contain more than one-third “sexual material harmful to minors” to use “reasonable age verification methods” (such as government identification or other personal documents) to determine whether users are over the age of 18. The challengers argued the law violates the First Amendment by creating an unfair free-speech burden on adults. 

Back up: HB 1181 passed the Texas legislature in 2023, but a federal judge blocked it from going into effect, finding that the law likely violated the First Amendment by interfering with adults’ access to protected speech. Texas appealed the decision, and the U.S. Court of Appeals for the 5th Circuit sided with the state. Free Speech Coalition, Inc., a nonprofit representing the adult film industry, then petitioned the Supreme Court to take up the case; the court heard oral arguments in January.

The central issue before the court was whether the 5th Circuit should have used a stricter standard of review to determine whether the Texas law violated the First Amendment. The challengers argued that the court should have assessed the case through strict scrutiny, which presumes a law is unconstitutional before it is considered. The court used this standard when deciding Ashcroft v. American Civil Liberties Union, a 2004 ruling that struck down a federal law outlawing commercial online content harmful to minors; the challengers in Free Speech Coalition said HB 1181 raised similar free speech issues because it forced adults to submit personal information, which could be vulnerable to hacking or tracking, to access the sites.

Conversely, Texas held that the age-verification requirement did not meaningfully hinder adults’ access to these sites and thus did not merit a higher level of scrutiny. The state argued that its provision was equivalent to existing identification requirements for brick-and-mortar adult-content stores that the Supreme Court has already found to be constitutional. 

Writing for the majority, Justice Clarence Thomas said the 5th Circuit should have used a higher standard, but not the strict scrutiny requested by the challengers. Instead, he found that the law should be subject to intermediate scrutiny — and that it still passed constitutional muster under this test. 

“The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” Thomas wrote. “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.”

Justice Elena Kagan dissented in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, arguing that the court should have sent the case back down to lower courts under a higher standard. “Under ordinary First Amendment doctrine, this Court should subject H. B. 1181 to strict scrutiny… [the law] 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,” Kagan wrote. “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.”

Today, we’ll share views on the case from the right and left, followed by my take.

What the right is saying.

• Many on the right support the decision, arguing it reflects a modern understanding of technology and the internet.
• Some say the ruling risks eroding free speech protections. 
• Others suggest the law is necessary to protect minors from the pervasive effects of porn.

In City Journal, John Ketcham wrote “the Supreme Court is right to age-gate porn.”

“With similar laws now on the books in at least 21 other states, the ruling empowers state authorities to shield children from sexually explicit online materials—and may also open the door to regulating minors’ access to social media,” Ketcham said. “Instead of remanding the case to the lower courts to determine whether H.B. 1181 meets intermediate scrutiny, the Court conducted the analysis itself—and found that neither prong posed a substantial hurdle. Precedent has long established that the state’s interest in protecting children from harmful sexual material is not only important but compelling.”

“Free Speech Coalition thus reflects a pragmatic recognition of the Internet’s contemporary dangers for children. As the majority observed, ‘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’ when the Court decided its earlier precedents,” Ketcham wrote. “The harms children face online are more widespread and better understood than ever. Free Speech Coalition gives states the legal tools to respond.”

In The American Enterprise Institute, Clay Calvert argued “doctrinal drift erodes online speech protection and court credibility.”

“Supreme Court opinions typically are governed by well-established doctrines for determining whether a statute passes First Amendment muster… Sometimes, however, the Court invents workarounds to dodge the application of those rules because their use would likely produce a result affecting a statute’s constitutionality that the justices may not favor,” Calvert said. “Last Friday’s six-justice majority opinion in Free Speech Coalition v. Paxton reflects such doctrinal evasion and, unless lower courts limit the decision to its facts, could chip away at free-speech rights.”

“In justifying the majority’s decision to dodge strict scrutiny… Justice Thomas called that test ‘unforgiving’ and ‘ill suited for such nuanced work. 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.’ Enter intermediate scrutiny, saving the statute,” Calvert wrote. “Inventing a workaround from strict scrutiny handed Texas a popular win in protecting minors from online pornography. One now must question how far lower courts will stretch the decision and what exemption from strict scrutiny the Court will carve out next that makes it easier to restrict controversial expression.”

In The New York Times, David French said “one of the worst industries in the world gets its comeuppance.”

“From left to right, all nine justices agree that pornography can cause great harm to children. All nine agree not merely that children have no constitutional right to view it but also that the state has a compelling interest in blocking their access,” French wrote. “And it’s no wonder. Our nation’s young people are in the midst of a virtual pornography pandemic. The combination of early exposure and the sheer violence and cruelty in so much modern pornography means that children are getting a sex education in exploitation.”

“Thomas was right about the outcome, but Kagan was right about the test. A law aimed at the content of speech should receive strict scrutiny, but Texas’ law should still have survived even the most exacting review,” French said. “No one thinks that the Texas law will solve the problem of childhood exposure to porn. There are simply too many workarounds, including the use of [VPNs]. But even raising a speed bump is worth the small incidental burden on adult rights.”

What the left is saying.

• The left opposes the ruling, arguing it ignores privacy concerns and risks restricting free expression.
• Some say the majority ignored clear precedent to reach its desired outcome.
• Others see the decision as a political opportunity for Democrats to stand up for free speech. 

In The Verge, Adi Robertson wrote “the Supreme Court just upended internet law.”

“Even the best age verification usually requires collecting information that links people (directly or indirectly) to some of their most sensitive web history, creating an almost inherent risk of leaks. The only silver lining is that current systems seem to at least largely make good-faith attempts to avoid intentional snooping, and legislation includes attempts to discourage unnecessary data retention,” Robertson said. “The problem is, proponents of these systems had the strongest incentives to make privacy-preserving efforts while age verification was still a contested legal issue. Any breaches could have undercut the claim that age-gating is harmless. Unfortunately, the incentives are now almost perfectly flipped. Companies benefit from collecting and exploiting as much data as they can.”

“We’re pretty much left speculating about how malicious state attorneys general might be. It’s easy to imagine LGBTQ resources or sex education sites becoming targets despite having the exact kind of social value the law is supposed to exempt,” Robertson wrote. “The question ‘What is porn?’ is going to have a tremendous impact on the internet — not just because of what courts believe is obscene for minors, but because of what website operators believe the courts believe is obscene. This is a subtle distinction, but an important one.”

In Public Knowledge, John Bergmayer said “protecting kids shouldn’t mean weakening the First Amendment.”

“The Court has long recognized that minors may be shielded from sexually explicit material that is not obscene for adults, but it has also insisted that adults should retain full access to protected speech. The constitutional problem arises when the state attempts to regulate access in a way that necessarily sweeps in adults, burdening their First Amendment rights both to speak and to receive speech,” Bergmayer wrote. “In such circumstances, the Court has consistently applied strict scrutiny and has struck down laws that are too broad, too vague, or that fail to explore less-restrictive alternatives.”

“For example, in Sable Communications v. FCC (1989), the Court struck down a federal ban on ‘dial-a-porn’ telephone messages that were ‘indecent but not obscene.’ The Court applied strict scrutiny because the law burdened adult access to protected speech. In Reno v. ACLU (1997), the Court invalidated key provisions of the Communications Decency Act that banned ‘indecent’ and ‘patently offensive’ material online, because of the effects on the speech of adults,” Bergmayer said. “Rather than applying strict scrutiny in line with precedent, the Court applied intermediate scrutiny… This shift in analysis is both new and troubling. The Court does not treat the law as a content-based regulation of protected adult speech. Instead, it frames the law as a permissible enforcement tool aimed at unprotected material.”

In The Nation, Elie Mystal suggested “Democrats should become the pro-porn party.”

“Democrats can speak to people who honestly believe that freedom of thought and expression are under attack in this country, because it is under attack — from Republicans. You might not be able to convince a cishetero white guy that ‘Free Palestine’ flags are germane to his free speech concerns, but you might convince him that porn is,” Mystal wrote. “That’s because pornography is an actual free speech issue. So is smut. So is obscenity. These are forms of free speech that conservatives and Republicans in the government are constantly trying to regulate.”

“Liberals are the people who are supposed to be at the vanguard of free expression when it comes to sexy time. Democrats should be exposing the fundamental Republican hypocrisy of treating PornHub like a sin but Donald Trump like a god. And they can do that by loudly and proudly defending people’s rights to access PornHub,” Mystal said. “These are the actual free speech issues of our time. Let Republicans rail against ‘woke’ terminology with their mouths while trying to ban Grand Theft Auto with their legislation. Democrats can outflank them by actually defending free speech from prudish Republican overreach.”

My take.

Reminder: “My take” is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• I think access to porn is a legitimate threat to children’s wellbeing, and I think this ruling will have a mostly positive effect.
• Legally speaking, I think the court should have applied strict scrutiny.
• Obviously this ruling creates trade-offs, but on balance, I think it does more good than bad.

It’s Supreme Court season, so most of you have learned by now that I like to evaluate these rulings in two parts: On the legal merits of the argument, and on the practical outcome. Today, though, I want to do something a little different and start with the practical outcome.

Longtime readers will probably be unsurprised to read that I am genuinely happy about this outcome. In 2023, we produced an entire YouTube video about a similar age-verification bill in Utah; and last year, I wrote a deep dive on the dangers of pornography — interviewing experts, advocates, and adult-film stars on both sides of the debate. My extensive research for these pieces convinced me of how dangerous the situation has become, and how necessary it is to act. Long story short: The pornography of 2025 is not like stealing a Playboy from your dad’s closet a few decades ago — it’s limitless, addictive, and increasingly extreme. And it’s easy for kids to access.

At the most basic level, I think the state has an interest in limiting the distribution of pornography. Society in general, and kids in particular, would be much better off if accessing porn were a little more difficult, and I think Texas is well within its rights to require an age-verification system. This law strikes me as the digital version of a liquor store owner requiring ID so teenagers can’t buy alcohol. 

Still, I do have reservations about age verification as a system to keep kids away from pornography. A couple of the experts I spoke to last year expressed support for these laws because they could truly impact children's ability to access these websites, but — as I noted in our 2023 video — I’m concerned those impacts come at the expense of violating adults’ privacy rights. It isn’t hard to imagine a world where adults who have entered personally identifying information to verify their age have their data and browsing history hacked. Or, alternatively, teenagers could steal their parents’ IDs (it’s been known to happen), use them to sign up for pornographic websites, and then that data could leak — making someone who may not have even used an illicit website vulnerable to the same risks (while still failing to prevent kids from accessing porn).

To that end, I wonder how much impact laws like this will really have. Texas’s law only applies to websites where over a third of the content is pornographic, meaning sites like Reddit (where pornographic content is common but not ubiquitous) are exempt. Additionally, pre-authenticated sites that parents use, VPN-connected devices that spoof out-of-state IP addresses, or even just a driver’s license within arm’s reach can allow kids to sidestep requirements that would be much more effective in person. 

So, up front: I’m personally glad that Texas won this case, and that states will be able to legislate to restrict pornography access for minors. I wish there were a perfect system that could both protect kids and preserve internet anonymity for adults, but age-verification is probably the best tool we’ve got right now. I’m willing to accept the practical effects of that trade-off, though I understand plenty of reasonable and sincere people are not.

Now for the legal arguments, where I’m much more conflicted. Clay Calvert (under “What the right is saying”) made a compelling case that the court invented a “doctrinal workaround” to get the result that they wanted — one that could potentially impact First Amendment rights down the line. And the specifics of how age verification is implemented are relevant: While Texas can legally block minors from accessing obscene content, it cannot burden adults; and requiring them to surrender anonymity and disclose personally identifiable information could certainly be a burden, and thus an infringement on their constitutional rights. 

As Calvert explained, the statute in question clearly falls under strict scrutiny because it is content based (targeting a specific kind of subject matter). Justice Thomas came close to acknowledging this in his majority opinion, but then conjured a new standard instead. Thomas called strict scrutiny “ill suited for such nuanced work” and declared “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.” I don’t have a law degree, but that does seem like someone writing new standards into existence on the fly rather than following the very standard Thomas himself set just a decade ago. 

Interestingly, and importantly, I think the court could have applied strict scrutiny and still reached its desired conclusion. In her dissenting opinion, Justice Kagan conceded that strict scrutiny may not have been fatal to this law, despite how difficult that higher standard is to survive. Nearly every justice on the court seemed compelled by the basic argument that pornography is bad for kids and that states have a compelling interest to limit it. 

Had the case been argued under strict scrutiny, Texas would have had to prove that the only way to block minors from accessing adult content was through the law it enacted. Under Thomas’s newly invented standard, though, the court can determine that the First Amendment only partially protects the speech in question (i.e. for adults, but not minors), and if the burden on adults is only incidental to blocking minors’ access, then intermediate scrutiny applies. Again, from Calvert: “One now must question how far lower courts will stretch the decision and what exemption from strict scrutiny the Court will carve out next that makes it easier to restrict controversial expression.”

I would have much preferred to see strict scrutiny applied here and then Texas prevail anyway, even if that outcome would have been less likely under that standard. Instead, the victory for Texas brings with it a whole slew of questions about future First Amendment infringements, along with plenty of reasonable concerns that age verification won’t be that effective in limiting access kids have to porn right now. Still, every government action comes with trade-offs, and I’d call this ruling a win for protecting kids.

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Your questions, answered.

Q: Two part question today. One is: how much should I read into the hype of the Left blowing up how badly the Right is going to take away our Social Security/Medicare/Medicaid/Veterans’ benefits? Even I (being left of Center) feel like it’s overblown most of the time. So my other question is: If a time comes where those benefits are actually in jeopardy, what does that initial red flag look like and how close are we really to that?

— Aaron from Felton, Delaware

Tangle: This is a fair question, Aaron, especially in the wake of all the coverage about how Republicans are cutting Medicaid. Simply put: Republicans have already voted to make Medicaid requirements larger and payouts to states smaller, which is more than a red flag about benefit cuts — it’s actually doing it. President Trump promised not to cut veterans’ benefits, Social Security, Medicare and Medicaid, but now that Congress passed Medicaid cuts, it’s fair to wonder if any of those programs are safe moving forward — especially as the executive branch is cutting staff at both Veterans Affairs and the Social Security Administration.

However, and as usual, it’s not exactly as simple as that. 

As we said last week, in passing the “One Big, Beautiful Bill,” Republicans voted for Medicaid work requirements and changes to the way it funds states operating the program, resulting in the largest cut to Medicaid benefits in history at nearly $1 trillion over a decade. However, many of those cuts are not authorized to take effect at least until the end of 2026, with most paused until 2028. That means Congress still has time to pass additional legislation that limits or supersedes these provisions. Additionally, the cuts — which we’ll emphasize are very large — may not materialize in the amount of dropped coverage that opponents of the bill (like us) are claiming. As Ramesh Ponnuru wrote in The Washington Post, the Congressional Budget Office — while quite good at predicting fiscal and macroeconomic impacts — has a pretty poor track record of estimating Medicaid coverage impacts. 

On that note, part of Congress’s cuts relate to Medicaid-funding mechanisms and not directly to coverage. The bill limits states’ use of “provider taxes,” a tactic states use to receive additional funding from the federal government and one that Joe Biden, as vice president, called “a scam.”

That’s not to say that Republicans’ Medicaid cuts will have a small impact on Americans; it’s just to say that the cuts may not actually materialize in the manner in which they were approved, and that there will still be a difference between the dollar amount cut and the services that will eventually be lost (though, of course, that difference could be larger, not smaller). The bottom line: Medicaid cuts are already underway, which is also a red flag that cuts to other benefits could be coming.

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Under the radar.

On Monday, the Centers for Disease Control and Prevention (CDC) announced that it has ended its emergency response to the H5N1 bird flu, as fewer animals have been infected with the H5N1 strain and no human cases have been reported since February. While 70 human cases of bird flu were reported to the CDC in total, no human-to-human exposures — and only one human fatality — have been reported in the U.S. since the CDC H5N1 Bird Flu Response began last April. The agency said it will continue to monitor the virus and issue monthly updates. Axios has the story.

Numbers.

• 73%. The percentage of teens aged 17 and younger who said they had consumed pornography, according to a 2022 Common Sense report.
• 54%. The percentage of teens who reported that they first saw online pornography when they were 13 or younger. 
• 12. The average age at which teens in the survey said they had first seen pornography.
• 58%. The percentage of teens who said they had encountered pornography accidentally.
• 6. The number of states with age-verification laws that took effect in 2023.
• 9. The number of states with age-verification laws that took effect in 2024.
• 9. The number of states with age-verification laws that have taken effect or are set to take effect in 2025.

The extras.

• One year ago today we wrote about whether Joe Biden should drop out of the presidential race.
• The most clicked link in yesterday’s newsletter was Elon Musk considering starting a new political party.
• Nothing to do with politics: As of yesterday, the TSA is phasing out its requirement for passengers to remove their shoes.
• Yesterday’s survey: 3,073 readers responded to our survey on the Texas floods with 70% saying NOAA cuts did not contribute to deaths. “I think the cuts were only about 25% to blame for the tragedy. The other 75%, in my opinion, comes from insufficient warning systems put in place,” one respondent said.

Have a nice day.

Andrew Roth was a prisoner at the Buchenwald concentration camp in Germany when Jack Moran arrived with the U.S. military to liberate the camp in April 1945. Roth survived Buchenwald, Auschwitz and an Eastern European ghetto during the Holocaust, while Moran made it through brutal fighting in Europe, including the Battle of the Bulge. Now both nearing 100 years old, the two recently met again in Los Angeles at the University of Southern California Shoah Foundation, eight decades after their first meeting. “I was much younger. So were you,” Roth said when they met. “How wonderful that you survived,” Moran said. NPR has the story and pictures.

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