Paxton, Porn, and the Impact on Video Games
2025 has been a doozy. In June, the Supreme Court released a whirlwind of opinions that could dramatically reshape our nation, including Free Speech Coalition v. Paxton (2024). This case—outwardly about regulating minors’ access to pornographic material—has the potential to disrupt established Free Speech protections, makes way for further regulation of the internet, and potentially impacts creative expression in games. Developers must now grapple with removing sexual content from their websites or risk coming under the purview of age-verification requirements. Precedent in Brown v. Entertainment Merchants Assn. (2011) is seemingly undisturbed for now, but this Court has demonstrated that even long-standing precedent may no longer be safe.
From Strict Scrutiny to Rational Basis: Paxton’s Radical Departure
In the decades before Paxton, the Supreme Court addressed the question of access to pornographic content on at least four occasions[1]. Four times the Supreme Court found adult content to be protected speech, and four times the Supreme Court determined that content-based restrictions on protected speech require strict scrutiny. This high standard requires the government to show a law is narrowly tailored to serve a compelling state interest and is the least restrictive means of achieving that interest.
Despite this precedent, twenty-one states have enacted age verification laws, citing the need to protect children from the harm associated with early exposure to pornography. All face legal challenges, primarily from Free Speech Coalition, a collective representing the adult entertainment industry. Free Speech Coalition has taken the position that the laws violate the First Amendment and has been successful in getting many permanently enjoined. Many hoped the Supreme Court would weigh in, and Texas provided the perfect opportunity.
In 2023, Texas passed H.B. 1181, requiring age verification to access websites consisting of 1/3 or more “sexual material harmful to minors.” The law was quickly challenged by Free Speech Coalition on First Amendment grounds. Consistent with decades of precedent, the Western District of Texas applied strict scrutiny to the law and found age verification impermissibly restricted adults’ access to protected speech and granted a preliminary injunction.
On appeal, in a first-ever decision of its kind, the Fifth Circuit held that Texas’ age verification law was subject to rational basis review. In contrast to strict scrutiny, rational basis review gives deference to the government and a law is upheld if it is rationally related to a legitimate government interest. The Fifth Circuit focused on minors and reasoned that since minors have no First Amendment right to access pornography, age verification is a reasonable way to block their access. The injunction was vacated, and Free Speech Coalition quickly filed a request for certiorari, which was granted by the Supreme Court.
The Supreme Court Carved Out a New Standard for Pornography Under the Guise of Protecting Children
On June 20, 2025, the Supreme Court released its opinion in Free Speech Coalition v. Paxton, departing from decades of precedent and upheld Texas’ age verification law. The majority opined that H.B.1181 allows Texas to adjust to the times and is analogous to requiring age verification at brick-and-mortar shops for alcohol and buying porn.
The majority also held that intermediate scrutiny is the correct standard of review. Intermediate scrutiny requires the government to show that the law furthers an important government interest in a way that is substantially related to that interest. According to the Court, Texas met this standard of review because protecting children from the harms associated with pornography is an important interest and age verification is a legitimate legislative choice that did not impose excessive burdens on adult users.
But how did the majority grapple with their own precedent? It claims previous cases addressed laws that were outright prohibitions on pornography, but those cases discussed at length that any requirement burdening adults’ access to protected speech needed to withstand strict scrutiny. Ironically, the majority cited Brown v. Entertainment Merchants Ass’n (2011) to support the idea that age verification is required to adapt to new technologies. But Brown actually struck down a restriction on access to new media and applied strict scrutiny, reaffirming that emerging technologies do not diminish established First Amendment protections.
Separately, the majority declined to consider privacy concerns inherent in providing identification (necessary for age-verification) to a website or third-party vendor, including the risk of data breach. The majority also implied that the chilling effects of accessing this type of speech are acceptable, as “the use of pornography has always been the subject of social stigma.”
Paxton Does Not Explicitly Overrule Precedent in Brown, but Nothing is Sacred
In Brown v. Entertainment Merchants Assn. (2011), the Supreme Court found California’s law prohibiting the sale of violent video games without parental consent unconstitutional. The Court determined videogames are protected expression and the State could not create new categories of unprotected speech. The Court reasoned that this country does not have a longstanding history and tradition of completely restricting children’s access to violence and determined the law was subject to strict scrutiny. California’s restriction could not survive strict scrutiny because there was no evidence that restricting this type of speech would reduce children’s tendency towards violence.
Brown seems undisturbed for now: there is a history and tradition of banning types of sexual content as obscene, unlike violence depicted in video games. Current protections for video games remain in place but Paxton suggests that the Supreme Court is more willing to disregard precedent and has even used Brown to support the notion that new technologies require new laws.
Paxton Will Impact the Type of Content Available Online
Platforms will need to assess whether the adult-only games they offer require age verification in twenty-one states. In response, they could reduce their offerings or stop selling this type of content entirely. While this issue is playing out in the gaming space, we’ve already seen how other types of platforms have responded to similar pressures: Pornhub, for example, currently restricts users in seventeen states from accessing any materials on its websites. Game developers may think twice before creating adult-only games or including sexually explicit content in their games. And ultimately, all of this will have a chilling effect on this type of speech.
What Now?
Paxton’s holding gives states the ammunition to withstand First Amendment challenges by creating a new standard of review for age verification legislation, and it could lead to a national standard. Presently, the holding is limited to restricting sexual content, but it may open the door to justify additional online regulation.
Significant questions remain regarding compliance, and we recommend that game developers, publishers and platforms consult with qualified legal counsel to fully understand the potential risks associated with these laws.
[1] In Sable Communications v. FCC (1989), the Court determined that adults have a protected right to access dial-porn services and applied strict scrutiny. In Reno v. American Civil Liberties Union (1997), the Court recognized a law barring internet transmissions of obscene or patently offensive messages to those under 18 would pose a burden for adults and required strict scrutiny. In United States v. Playboy Entertainment Group, Inc. (2000), the Court applied strict scrutiny to a law restricting sexually-oriented cable channels from providing content during times when children are likely to view. Finally, in Ashcroft v. American Civil Liberties Union (2004), the Court found that prohibiting commercial entities from posting on the internet content “harmful to minors” burdened some speech protected for adults and applied strict scrutiny to the content-based restriction.