Lawrence G. Walters, Esq. – August 4, 2025

The Ruling and its Legal Context

On June 27, 2025, the United States Supreme Court handed down the landmark decision in Free Speech Coalition v. Paxton, upholding the Texas age verification law in the face of a constitutional challenge. The Free Speech Coalition, and other petitioners, argued that the law failed to survive strict scrutiny review which has historically been applied by the courts in online age verification cases. Laws subjected to strict scrutiny are almost always struck down. Texas, on the other hand, claimed that the law merely needed to pass the lenient rational basis test, which was previously used when evaluating laws barring minors from physical adult bookstores. Laws evaluated under the rational basis test are usually upheld. The Oral Argument spanned some two hours and largely focused on which of these competing tests should be used to evaluate the law’s constitutionality.

The Court Adopts Intermediate Scrutiny

But alas, six conservative SCOTUS justices had other plans for the outcome of this case. Justice Thomas, writing for the Court, announced that the law would instead be subjected to “intermediate scrutiny”, which it easily passed. Under the intermediate scrutiny test, laws only need to serve an important governmental interest and be substantially related to achieving that interest. To justify this result, the Court concluded that the Texas law only incidentally burdened the rights of adults to access sexually explicit content online and adults have no First Amendment right to access such content without age verification. In an act of judicial wizardry, the decision parsed out the act of accessing adult content without age verification, which is unprotected, from viewing adult content which adults have a First Amendment right to do.

Arguments from Petitioners and Child‑Safety Advocates

The petitioners, along with other supporting groups, attempted to educate the Court in the briefing regarding the significant burden imposed on adults by the Texas law, given the risks of data breach associated with online age verification, the significant percentage of adults that do not have identification documents, the threat to individual privacy rights, and the chilling effect of the law that stops adults from viewing age verified content. A large child online protection organization, ICMEC, submitted a brief opposing age verification due to the resulting harm to minors who will avoid regulated adult sites and be driven to the dark corners of the internet where they risk exploitation or worse. These arguments were essentially ignored by the Court, which focused on the ready availability of explicit content online and vast use of mobile devices by minors as reasons to uphold the law.

The Industry Reacts and State Laws Loom

Adult industry organizations and free speech advocates were shocked and saddened by the decision. Effectively, the Court cleared the way for other U.S. states to impose online age verification. Most of the pending legal challenges to other existing laws are likely to be dropped. Some state’s statutes may go too far to survive constitutional muster under the intermediate scrutiny standard. For example, Tennessee imposes felony penalties for violations and requires re-verification every 60 minutes. The Alabama law currently in effect requires that platform operators obtain signed, notarized, consent forms from all persons depicted in pornographic content. The North Carolina law requires that all adult content be supported by separate consent forms for each sex act depiction, and each publication of the depiction. Time will tell whether the courts will impose any reasonable limits on the states’ efforts to restrict access to adult content. The Paxton ruling may incentivize some states to impose even more extreme restrictions. We can be hopeful that the First Amendment still has some meaning when it comes to the imposition of burdens on adults accessing constitutionally protected speech.

Immediate Compliance Steps for Website Operators

From a practical standpoint, the Court’s ruling means that adult website operators whose content meets the applicable definition and percentage threshold in a restricted state should immediately implement the required age verification methods or risk civil claims, administrative penalties, or even criminal prosecution. While geo-blocking residents in a restricted state may be an option, geo-blocking produces many false negatives and false positives. Ultimately, the burden will be on the operator to ensure that it has prevented minors from accessing adult content whether through blocking or age verification. Operators should also seek legal advice on any recommended changes to their privacy policies or user agreements in light of these state AV laws. In that regard, operators should be aware of any new AV data that they will be collecting from users pursuant to their privacy policies, and consider whether to change any dispute resolution terms in their user agreements.

Offshore Operations and Jurisdiction Concerns

Some operators may feel that their offshore location will sufficiently protect them from enforcement of U.S. laws. This is likely a dangerous assumption. If an operator regularly engages in commercial transactions with numerous users or service providers in a restricted state, a strong argument exists for a court having the necessary personal jurisdiction over the company sufficient to force it to defend a lawsuit in the state. However, some foreign operators, such as content aggregators or affiliates that merely drive traffic to third party websites, may be in a different legal position.

A New Litigious Environment

The industry should also be aware of the burgeoning plaintiffs’ law practice area that was created by these laws which allow enforcement through private lawsuits. We expect to see a number of these claims filed against non-compliant operators in the near future, particularly given the ability to recover attorneys fees against unsuccessful defendants. Many litigants were likely awaiting the SCOTUS ruling before filing these claims.

Over‑Moderation and Performer Impact

We can also expect a new wave of adult content moderation by online platforms as they grapple with the need to keep the percentage of adult content below the applicable threshold. It is likely that platforms will over-censor adult content in any close cases, to avoid having that content count in the total calculation.

Many adult performers are asking whether these laws apply to them. The simple answer is yes, some of the state AV laws are clearly broad enough to cover performers who offer adult content on their own landing page, or on third party websites, without age verification. However, we are unaware of any current efforts to enforce the laws in such circumstances. That said, performers have an incentive to ensure that their content is offered on age verified sites, where required, as a risk mitigation effort.

Looking Ahead

While the Paxton decision was a gut punch, the adult industry has overcome many headwinds in the past. Consider the wave of obscenity prosecutions that were directed first against adult bookstores and later against adult website operators, at the state and federal levels. The industry also had to adapt to the passage of Section 2257 and FOSTA/SESTA. However, the adult industry is strong and innovative. Technology like blockchain tokens and AI will likely drive developments in AV tools that will make the process less costly and more streamlined. As the U.S. Supreme Court noted over 60 years ago, “Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” The interest in human sexuality shows no signs of slowing, despite governmental efforts to limit access to sexual expression online.

About the Author

Lawrence Walters is the operator of Walters Law Group, which represents adult industry clients worldwide. Nothing in this article is intended as legal advice. You can contact Mr. Walters through the firm’s website, www.firstamendment.com, or on social media @walterslawgroup.