One year after the Supreme Court ruled that states can require age verification for online adult content without violating the First Amendment, roughly 25 states now have similar laws on the books, up from about 20 at the time of the decision. A new analysis from the Competitive Enterprise Institute finds that age verification mandates are now moving beyond adult websites to encompass social media platforms and even app stores, raising questions about whether last year's FSC v. Paxton decision will prove far broader in practice than its narrow framing suggested.
The legal landscape has grown messy. According to the report, federal district courts have blocked social media age verification laws in Louisiana, Virginia, Nebraska, and Arkansas, among other states. But at the appeals level, the pattern flips: the Fifth Circuit stayed a district court injunction on Mississippi's law, the Eleventh Circuit did the same for Florida's statute, and the Sixth Circuit reversed outright a lower court ruling that had halted Ohio's parental consent requirement for social media. Two Fifth Circuit cases now in effect—NetChoice v. Fitch (concerning Mississippi's social media age verification law) and CCIA v. Paxton (covering Texas's app store mandates)—could reshape how far these requirements reach. The Supreme Court declined to intervene in both, though Justice Kavanaugh indicated he believes Mississippi's law is likely unconstitutional.
The split among courts doesn't just involve whether these laws can stand, but why. The report notes that the Eleventh Circuit called Florida's law likely content-neutral and able to survive intermediate scrutiny, while the Sixth Circuit's divided opinion labeled Ohio's parental consent law content-based yet upheld it anyway as narrowly tailored. The Fifth Circuit has yet to rule in the Mississippi case following oral arguments earlier this year. In the Texas app store case, the appeals court treated much of what the mandate regulates as commercial speech, which faces a more forgiving standard of review than content-based restrictions. "The courts are no longer merely split over whether these laws are content-based restrictions," the report states. "Even when they agree that they are, they divide over whether that renders them unconstitutional."
This marks a significant shift from how FSC v. Paxton was understood when it was decided. The analysis argues that while no court has formally extended the ruling's holding, a case initially about access to adult websites has become the backdrop to an emerging fight over whether companies like Apple and Google must verify a user's age before they can download any app. The obligation to verify age is migrating down the technological stack—from adult sites to social platforms to app stores—and so far, these laws are increasingly allowed to take effect, though not always on stable legal footing. The report concludes that whether this contest ends where the Supreme Court said FSC v. Paxton did—narrowly—is now the question worth following.