From porn to parental controls, age checks appear here to stay

In Free Speech Coalition, Inc., et al. v. Paxton, Attorney General of Texas, No. 23-1122, 2025 WL 1773625, 606 U.S. (June 27, 2025), the Supreme Court balanced privacy and First Amendment interests with Texas' interest in protecting minors from obscene content online, holding 6-3 that a Texas age verification law passed constitutional muster. The decision makes it even more likely that California's Assembly Bill 1043, a pending age verification law known as the Digital Age Assurance Act, will similarly overcome any constitutional and privacy-based challenges it may face.

While the two bills both generally address minors' access to online content and implicate similar privacy and First Amendment interests, they also differ in important ways -- differences that further increase the likelihood of the California law being upheld following Free Speech Coalition, Inc. v. Paxton. Texas House Bill 1181 is content specific, compelling websites to verify their users' ages if more than one-third of their site's content is "sexual material harmful to minors." Id. at *3. Websites can comply with this age verification requirement by compelling users to provide government-issued identification or other commercially reasonable methods that rely on public or private transactional data. Id. California's AB1043, by contrast, is content-neutral, focusing strictly on age assurance, to limit minors' exposure to all types of harmful content, bullying, harassment and predatory behaviors, all of which, its supporters say, negatively impact minors' mental health. Assembly Bill 1043 (2025) California Leg. 2025-2026 (Ca 2025). It requires device and operating system manufacturers and app stores to implement age assurance signals by making users provide their age or birthdate during account setup. Developers receiving age signals are required to provide features like content management, account linking and screen time limitations. Notably, for users under 16, app stores must obtain parental consent before app downloads and send signals to developers about the consent status. Id. Unlike Texas HB 1181, no personal data, aside from age, is sought from users, and even a user's exact age is not transmitted; rather, a secure, non-identifying age bracket signal is provided to developers. Id.

The challengers of Texas HB 1181, representing the pornography industry, argued the law is unconstitutional under the First Amendment's free speech clause, claiming it impermissibly hinders adults' access to protected speech. Paxton, 2025 WL 1773625 at *4. The Court held that because HB 1181 has only an incidental effect on protected speech, it is subject to intermediate, rather than strict scrutiny. Id. at *8. (The Dissent argued that the law should have faced strict scrutiny because it is a content-based regulation that directly burdens protected adult speech, not merely incidentally. Id. at *20 (Kagan J., dissenting)). The Court found the purpose of the bill was to "prevent minors, who have no First Amendment right to access speech that is obscene to them, from doing so." Id. at *11. Because adults have no 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 only incidental to the statute's regulations of activity that is not protected by the First Amendment. Id.

In addition to the First Amendment challenge, the representatives of the pornography industry also argued that the age verification methods used by the subject websites would violate the privacy rights of those adults, citing the "unique stigma surrounding pornography [that] will make age verification too chilling for adults." Id. at *18. The Court rejected the privacy concerns on the grounds that: (1) users only have to submit verification to the covered website itself or the third-party service with which the website contracts, both of which are incentivized to assure users of their privacy; (2) the use of pornography has always been the subject of social stigma but has never been a reason to exempt the pornography industry from otherwise valid regulation; and (3) the decades-long history of both traditional and digital means of age verification to access pornography refutes any argument that the chill of verification is an insurmountable obstacle for users. Id. (The Dissent took issue with the Majority declining to weigh in on whether HB 1181 permits websites to use "newer biometric methods of age verification, like face scans," that pose fewer privacy concerns than submitting government ID and transactional data. Free Speech Coalition v. Paxton, 2025 WL 1773625 at *27 (Kagan, J. dissenting)).

California's AB 1043 may avoid serious constitutional challenges because it is content-neutral, focusing on age assurance rather than content moderation. Privacy concerns are also mitigated because (1) the age bracket signal is divorced from any other personally identifying information, and (2) no personal information is stored or shared. The main opposition to the bill has come from tech industry advocates who complain about the added costs to website and app developers. Some also lament that the bill improperly places the burden of protecting children from harm resulting from social media use on app stores and small business app developers, rather than social media websites themselves.

AB 1043 (and HB 1181) reflects a growing national movement to protect children online. AB 1043 is backed by a broad coalition of organizations that support child safety, mental health, privacy, education and public safety, and is also popular with parents: A recent statewide poll by First 5 California shows overwhelming support among parents for greater oversight of the apps their children can access, with 84% preferring a centralized, one-stop approach to parental controls over managing permissions app by app. First 5 California Poll on Youth Online Safety: California Parents Overwhelmingly Support App Store Parental Approval Requirements (2025).

On June 2, the bill passed the California State Assembly 76-0 and is now in the Senate. AB 1043 already enjoys strong bipartisan and popular support and, with the Supreme Court's ruling in Free Speech Coalition, Inc. v. Paxton, appears well-positioned to become California law.