For three decades, America ran a radical experiment: What if the government only lightly regulated the most powerful communication medium ever invented? In the foundational Supreme Court cases of the 1990s that shielded the nascent internet from censorship, and in the sweeping immunity that’s been granted to platforms under Section 230, the reigning philosophy was one of libertarian restraint—usually in the name of protecting Americans’ freedom of speech and expression. The Supreme Court just signaled that the experiment is coming to an end.
At the end of June, in Free Speech Coalition v. Paxton, the Court upheld a Texas law requiring websites with sexually explicit material to verify the age of their users, despite the burden this imposes on adults who have a First Amendment right to view such content. The decision will make accessing online pornography harder for minors—a goal that even the Court’s liberal justices seemed to support.
But this case’s true importance lies not in its effect on the adult-entertainment industry, but in the shift it demarcates in America’s willingness to regulate digital technology at all. The ruling marks a definitive end to the internet’s laissez-faire era, handing lawmakers a new child-safety tool that will be used to shape popular platforms, including social media and artificial intelligence.
The Texas law presented the Court with a classic First Amendment dilemma: how to protect children from harmful content without unduly restricting adults’ constitutional rights. Though states are allowed to bar minors from accessing pornography, adults have a First Amendment right to view such material. The Texas law, passed on a bipartisan, near-unanimous basis and in effect since a lower court upheld it in 2024, requires adult websites to verify users’ age through rigorous methods such as checking government-issued ID or using third-party verification services. Simply asking users to self-declare their age isn’t enough. Websites face significant penalties for noncompliance, effectively forcing major platforms to either implement these verification systems or block Texas users entirely. The constitutional question was whether these burdens on adult access went too far.
The debate among the justices was less about the answer to that question than about the proper framework for examining it. Under the First Amendment, different types of regulations face different levels of judicial scrutiny. When a law doesn’t infringe on speech rights, courts use “rational-basis review”—an easy-to-satisfy test that merely asks if the legislature had any reasonable justification for the law. But when a law regulates speech based on its content, courts apply “strict scrutiny,” demanding that the government prove the law serves a compelling interest and is “narrowly tailored” to achieve that goal—that is, it uses the least restrictive means possible to accomplish its purpose. Laws rarely survive strict scrutiny, leading to its frequent description as “strict in theory, fatal in fact.”
Between these two poles is “intermediate scrutiny,” which applies to laws that have an “incidental” effect on speech: regulations of unprotected speech or conduct that nevertheless have some effect on protected speech. Intermediate scrutiny requires the government to prove that a law furthers an important government interest and does so by methods substantially related to that interest.
Justice Clarence Thomas, writing for the six-member conservative majority, upheld the law, arguing that because children have no First Amendment right to access pornography and age verification has long been a traditional state practice, any “incidental burden” on adult speech—here, the inconvenience of providing proof of age—warranted only intermediate scrutiny. Justice Elena Kagan, in a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, argued that strict scrutiny was the appropriate standard because the law imposed substantial burdens on adult access to First Amendment–protected content.
While technical, the distinction between intermediate and strict scrutiny has major practical implications. Though these standards are hardly precise mathematical formulas, they serve as guideposts for courts in determining how rigorously to examine laws affecting speech rights. By subjecting age-verification requirements to only intermediate scrutiny—such that states do not have to prove that their laws use the “least restrictive means” to achieve their goals—the Court has substantially lowered the constitutional barriers for such regulations. This more deferential approach matters immensely given that more than 20 states, primarily Republican-led, have already enacted similar laws. With the Supreme Court having cleared away constitutional uncertainty, more states—including some controlled by Democrats—are likely to pass their own age-based restrictions.
Notably, the choice between intermediate and strict scrutiny may not have actually mattered in this case. Kagan’s dissent, while insisting on strict scrutiny as the proper standard, suggested that Texas’s law might have survived that more demanding test—a remarkable concession given how few laws clear this constitutional bar. This hints at a broader consensus: Although the justices split 6–3 on the appropriate legal framework, they may be unanimous in seeing a valid role for expansive child-safety regulations in the digital age.
The contrast between Free Speech Coalition and the Court’s views in the 1990s is striking. When the internet was young, the justices approached it with a mixture of wonder and wariness about governmental interference. In 1997’s Reno v. ACLU, the Court marveled at this “international network of interconnected computers” that had grown to 40 million users around the world—a figure that seems quaint today—and struck down Congress’s first major attempt to regulate online content, the Communications Decency Act (CDA), which, like the Texas law, sought to protect children from online pornography. The majority opinion reads like a paean to digital freedom, warning against government actions that might “torch a large segment” of this revolutionary new medium and “reduce the adult population to only what is fit for children.”
Around the same time, the main part of the CDA to survive Reno, Section 230, was being interpreted to provide immunity for user-generated content far beyond what Congress intended, to the point where today it functions as a kind of supercharged First Amendment for the internet. Together, Section 230 and decisions like Reno erected a fortress around internet companies—not just of legal protections, but of cultural assumptions that regulation would only harm innovation.
But whatever regulatory exceptionalism Silicon Valley may have once enjoyed is rapidly coming to an end. Reverence for digital technology has given way to a more measured, even skeptical stance. The Court in Free Speech Coalition took pains to distinguish its approach from its earlier decisions, emphasizing that Reno and its ilk were products of their time—decided when the internet was “still more of a prototype than a finished product.” As the majority observed, the internet has “expanded exponentially” since then—from a few tens of millions of users looking at static photos over dial-up connections to 95 percent of American teens carrying smartphones with instant access to “massive libraries of pornographic videos.” In the majority’s view, it would be “misleading in the extreme” to assume that those earlier precedents control today’s radically different digital landscape.
One can’t know how broadly or narrowly future courts will interpret Free Speech Coalition until they actually do so. But the decision’s logic points in a clear direction: Courts will likely be receptive to regulations that aim to protect children from harmful online content as long as the minors themselves lack or have diminished First Amendment rights to that content and the burden on adult access isn’t too large. This matters because “Think of the children” has emerged as one of only two points of bipartisan consensus in our otherwise polarized tech-policy debates—the other being the need to counter China’s technological influence.
In the past two years alone, dozens of laws have been proposed or enacted targeting social-media platforms, AI labs, and other tech services—nearly all justified as protecting minors. The list grows monthly, from enacted state laws such as Utah’s Minor Protection in Social Media Act and California’s Age-Appropriate Design Code to major bipartisan bills proposed in Congress, such as the Kids Off Social Media Act and the Kids Online Safety Act. All of these efforts grew out of concerns over genuine harms to children, and all of them impose broad regulatory requirements that inevitably affect how adults use these services too.
Although some of these laws may fail—either in legislatures or courts—Free Speech Coalition gives this regulatory approach powerful new momentum. This is true even after the Court’s decision last year in Moody v. NetChoice, which signaled that laws forcing social-media platforms to host speech they disagree with likely violate the First Amendment. That fractured opinion—which provides a murky guide at best—does little to impede the specific regulatory strategy blessed in Free Speech Coalition. The Court has now given a green light to using child safety as the justification for imposing age-based access restrictions, a model that could soon extend beyond pornography to aspects of social media or AI chatbots.
This evolution didn’t come out of nowhere. The results of the 30-year experiment with a hands-off approach are in, and much of society, including the Supreme Court, is recoiling from the consequences. The fear of stifling a new technology has been replaced by dread of the harms that technology, left unregulated, can cause, such as damage to children’s mental health and the potential undermining of democracy itself. In Free Speech Coalition, the Supreme Court is acknowledging this paradigm shift. The laissez-faire era is over. What remains to be seen is whether a new era of regulation will prove any more successful at mitigating the toll of the digital world.
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