Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.In 2023, Lawrence seconded at Amazon Lab126, where he led the negotiation of high-profile licensing deals for a variety of Amazon device teams. The secondment was an immersive opportunity to gain additional insights and experience from the perspective of in-house counsel. Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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SCOTUS Age-Gates the Internet: Free Speech Coalition v. Paxton and the Future of Adult Content Regulation

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In a ruling that could reshape how adult content is regulated online, the U.S. Supreme Court has officially age-gated the First Amendment—at least when it comes to minors.On June 27, 2025, the Court upheld a Texas law requiring websites with pornographic material to verify visitors’ ages in <a href="https://www.supremecourt.gov/opinions/24pdf/23-1122_3e04.pdf" target="_blank">Free Speech Coalition v. Paxton</a>, agreeing with the Fifth Circuit’s decision to lift a lower court injunction that had blocked the law’s enforcement. While both courts reached the same outcome, they took different doctrinal routes to get there. The Fifth Circuit applied a rational basis review, the most deferential form of judicial scrutiny. The Supreme Court instead embraced intermediate scrutiny, but found the law constitutionally sound all the same.Texas Attorney General Ken Paxton promptly<a href="https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-successfully-defends-texas-law-requiring-age-verification-pornography" target="_blank"> hailed the decision</a> as “a major victory” for parents, children, and state sovereignty. He pledged that Texas would “enforce the law against any organization that refuses to take the necessary steps to protect minors from explicit materials.”The ruling shifted the online age-verification debate from legal theory to digital compliance. For adult sites hoping to operate in Texas, the message is clear: Start checking IDs.House Bill 1181: A Legislative Age GatePassed by the Texas Legislature in 2023, <a href="https://legiscan.com/TX/text/HB1181/2023" target="_blank">House Bill 1181</a> requires any website where at least one-third of the content is considered “sexual material harmful to minors” to implement an age verification system. That verification can be conducted directly by the website or through third-party tools, and must rely on government-issued IDs or other “commercially reasonable” methods.The law defines “sexual material harmful to minors” as content that is obscene from the perspective of an average person considering the material’s effects on minors. Violators face steep penalties: up to $10,000 per day for noncompliance, and up to $250,000 if a minor successfully accesses sexually explicit material. The law empowers the Texas attorney general to bring civil enforcement actions.The case’s procedural posture helps explain the Court’s approach. The Free Speech Coalition—a nonprofit representing the adult entertainment industry—<a href="https://action.freespeechcoalition.com/wp-content/uploads/2023/08/FSCvTX.pdf" target="_blank">filed suit</a> just weeks before the law’s September 1, 2023 effective date, arguing that the statute chilled both the expressive rights of adult content creators and the ability of adults to lawfully access constitutionally protected material online. The plaintiffs brought a facial First Amendment challenge, asserting that the statute was unconstitutional in all of its applications. A federal district court agreed that the plaintiffs were likely to succeed on that claim and issued a preliminary injunction. But the <a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-50627-CV0.pdf" target="_blank">Fifth Circuit reversed</a> under a more deferential standard of review. When the case reached the Supreme Court, the Justices addressed the facial challenge on the merits, despite the preliminary posture of the appeal. The Supreme Court granted certiorari in early 2024, setting the stage for a high-stakes showdown over the constitutional limits of online age verification.The Supreme Court’s Holding: Intermediate Scrutiny AppliesWriting for the 6-3 majority, Justice Clarence Thomas concluded that H.B. 1181 targets a category of speech that is unprotected under the First Amendment—material deemed obscene to minors—while acknowledging that adults retain a right to access such content. The Court characterized any resulting burden on adults as incidental. “[A]dults have no First Amendment right to avoid age verification,” the Court wrote in the context of speech that is obscene to minors, “and the statute can be readily understood as an effort to restrict minors’ access. Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment.”That conclusion shaped the Court’s choice of legal standard. The Free Speech Coalition had urged the Court to apply strict scrutiny, the most rigorous form of constitutional review. But the majority declined, holding instead that intermediate scrutiny applied. Strict scrutiny demands that a law be narrowly tailored to achieve a compelling governmental interest and, as Justice Thomas puts it, is “almost always fatal in fact.” Intermediate scrutiny, by contrast, permits content-neutral laws that serve important government interests and do not burden substantially more speech than necessary.The Court also rejected Texas’s argument that a rational basis review should apply, finding that the law does impose an incidental burden on adults’ protected access—and thus warranted more searching scrutiny.In the Court’s view, H.B. 1181 qualified as a content-neutral regulation that targets only a narrow category of unprotected speech. Specifically, the statute applies to material that is “obscene to minors”—that is, content that appeals to the prurient interest, is patently offensive, and lacks serious value when viewed from the perspective of a minor, consistent with the modified Miller test upheld in Ginsberg v. New York.Because the law regulates access based on the age of the viewer rather than the content’s viewpoint or subject matter, the Court deemed it content-neutral. Such regulations, the Court explained, pose a “less substantial risk of excising certain ideas or viewpoints from the public dialogue” and are therefore evaluated under the intermediate scrutiny framework set out in Turner Broadcasting System, Inc. v. FCC. Applying that standard, the Court concluded that H.B. 1181 advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests—thereby passing constitutional muster.Parsing the Precedent: Why Earlier Cases Didn’t ControlTo reinforce its conclusion, the majority revisited a string of First Amendment cases involving sexually explicit content and online regulation—each applying strict scrutiny to laws limiting access—and explained why none controlled the outcome here.In Sable Communications of California, Inc. v. FCC, the Court struck down a federal ban on “indecent” dial-a-porn services that swept in a substantial amount of protected speech. That law imposed a blanket prohibition. H.B. 1181, by contrast, “is not a blanket prohibition,” the Court emphasized. “Adults remain free to access pornography on covered websites, so long as they verify their ages first.” Because H.B. 1181 conditions access rather than prohibits it, the Court viewed it as a more modest regulatory measure, and one that does not trigger the same level of constitutional concern.United States v. Playboy Entertainment Group, Inc. involved a statute requiring adult cable channels to be confined to late-night hours. There, the Court applied strict scrutiny to what it viewed as a significant restriction on adult speech. While the law in Playboy affected “30 to 50% of all adult programming,” H.B. 1181 imposes no blackout period and applies only to material deemed obscene to minors, a category of speech that receives less constitutional protection than content that is indecent but not obscene.The Court also distinguished Reno v. American Civil Liberties Union, which invalidated portions of the Communications Decency Act (yes, the same CDA that gave us <a href="https://www.law.cornell.edu/uscode/text/47/230">Section 230</a>). In that case, the law imposed a sweeping ban on transmitting “indecent” or “patently offensive” content online to minors, without providing a workable way to distinguish between adult and minor audiences. As a result, the Court concluded that the statute “effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive.” In contrast, the majority in Paxton emphasized that H.B. 1181 applies only to content that is obscene to minors, a narrower and less protected category of speech. Adults may still access the material, but they must first verify their age—a requirement the Court viewed as a permissible procedural safeguard rather than a suppression of speech.A similar distinction applied to Ashcroft v. American Civil Liberties Union, which addressed the Child Online Privacy Protection Act. That law imposed criminal penalties for posting material harmful to minors, with only an affirmative defense for websites that used specific age-verification tools. In Ashcroft, the Court applied strict scrutiny in part because speakers faced liability up front and because the record reflected outdated technology. By contrast, H.B. 1181 “makes the lack of age verification an element that the State must plead and prove,” and “simply adapts [a] traditional approach to the digital age.”To further support its analysis, the Court invoked United States v. O’Brien, which upheld a ban on draft card burning despite its incidental impact on expressive conduct. “So too here,” the majority wrote, “because accessing material obscene to minors without verifying one’s age is not constitutionally protected, any burden H.B. 1181 imposes on protected activity is only incidental.”This distinction—between incidental and direct burdens—was central to the Court’s reasoning. H.B. 1181, the majority said, is “an exercise of Texas’s traditional power to prevent minors from accessing speech that is obscene from their perspective.” It targets “only speech that is obscene to minors” and regulates access, not content. The Court’s mandate is clear: Adults may be required to verify their age, and “they have no First Amendment right to avoid age verification,” at least when it comes to material deemed obscene to minors.Age Verification in the Digital EraThe majority also grounded its analysis in what it described as a fundamentally transformed technological landscape. Earlier cases like Reno and Ashcroft were decided before “the rise of the smartphone and instant streaming,” when the internet was “still more of a prototype than a finished product.” Today, the Court observed, minors can “access vast libraries of video content—both benign and obscene—at almost any time and place, with an ease that would have been unimaginable” in the late 1990s.That shift, in the Court’s view, makes digital age verification not just reasonable, but necessary. Citing Ginsberg v. New York, where the Court upheld an age-check requirement for in-store purchases of obscene material, the majority emphasized that online platforms lack even the minimal safeguards of a physical retail environment. “Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages,” the Court explained. “Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected.”To reinforce the point, the Court listed other settings where age verification is standard: alcohol, tobacco, lottery tickets, tattoos, fireworks, driver’s licenses, voting, and marriage. “Obscenity is no exception to the widespread practice of requiring proof of age to exercise age-restricted rights.”Against that backdrop, the Court concluded that Texas’s regulatory approach was neither novel nor constitutionally suspect. “Requiring age verification online is plainly a legitimate legislative choice,” the opinion stated. “H.B. 1181 simply requires established verification methods already in use by pornographic sites and other industries. That choice is well within the state’s discretion under intermediate scrutiny.”The Court also rejected arguments that the law infringed on user privacy. Covered websites and their third-party vendors, the opinion noted, “have every incentive to assure users of their privacy,” and many have already adopted age-verification measures voluntarily. The requirement to submit an ID or equivalent data is, in the Court’s view, a modest and constitutionally permissible burden.A Note on History: Obscenity and the First AmendmentIn tracing the history of obscenity regulation, the majority highlighted that English common law and early American courts recognized the distribution of obscene material as criminal conduct, especially when it involved minors. By the late 19th century, most states had codified bans on obscenity, and many explicitly targeted materials “tending to the corruption of the morals of youth.” The opinion pointed to cases like Commonwealth v. Sharpless (Pa. 1815) and Knowles v. State (Conn. 1808) as evidence that regulating youth access to sexual content is not a novel innovation, but a continuation of deep-seated legal norms. The Court relied on that historical framing to support its conclusion that laws like H.B. 1181 reflect “Texas’s traditional power to prevent minors from accessing speech that is obscene from their perspective,” a power the majority described as longstanding and consistent with the First Amendment.The Dissent: Strict Scrutiny Still AppliesJustice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, issued a forceful dissent that rejected the majority’s doctrinal shift and reaffirmed a familiar First Amendment principle: content-based laws that burden access to protected speech require strict scrutiny.“Texas’ law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so,” Kagan wrote. “That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny.”Kagan accused the majority of abandoning settled doctrine in favor of “special-for-the-occasion, difficult-to-decipher rules” designed to reach a preferred outcome: upholding the statute. She noted that the Court had previously applied strict scrutiny in four cases involving efforts to restrict minors’ access to adult content—Reno, Ashcroft, Sable, and Playboy. “There is no reason to change course,” she wrote.To Kagan, the majority’s attempts to distinguish those precedents based on technological change or doctrinal nuance rang hollow. “Four times, one result,” she observed. “Which is not surprising, because it is the result that basic First Amendment principles command.”The dissent also pushed back on the majority’s analogy to United States v. O’Brien, where the Court upheld a law prohibiting the burning of draft cards. Kagan emphasized that O’Brien dealt with conduct, not speech, and warned that applying its framework to age-verification laws risked diluting First Amendment protections for adults. “I would demand Texas show more,” Kagan wrote, “to ensure it is not undervaluing the interest in free expression.”Privacy concerns, too, loomed large in the dissent. Kagan rejected the majority’s framing that the law was like flashing an ID at the door of a club. In her view, the stakes were far higher. “It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to … who knows? The operator might sell the information; the operator might be hacked or subpoenaed.”Ultimately, the dissent argued that Texas could have chosen a less speech-restrictive path—and that under the First Amendment, it was required to do so. “Texas can of course take measures to prevent minors from viewing obscene-for-children speech,” Kagan wrote. “But if a scheme other than H.B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to).”What Comes Next?The ruling is poised to ripple outward. More than 20 states have either enacted or proposed similar age verification laws for adult websites. At the federal level, bills like the Kids Online Safety Act continue to gain traction. With the Court’s decision, those legislative efforts may find firmer ground. At the same time, the opinion leaves unresolved questions for platforms, regulators, and courts alike: How narrowly can states define “harmful to minors”? Who qualifies as a valid age verifier? And how will courts assess the burden of compliance when laws vary state by state?H.B. 1181 allows covered websites to verify age using either a government-issued ID or “commercially reasonable” methods based on transactional data—such as credit card use or third-party authentication services. The statute doesn’t define these methods in detail, and the Court embraced that flexibility as part of the law’s constitutionality. But the lack of specificity could leave platforms navigating a compliance gray zone, especially as different states begin adopting (and enforcing) their own versions of “reasonable” verification.The statute’s one-third threshold also remains vague. It does not specify whether coverage is measured by number of pages, volume of data, duration of content, or user engagement—leaving website operators to guess whether and how they fall within the scope of the law. The Court did not address this ambiguity, and platforms hosting user-generated content or dynamically served media may face real technical burdens in attempting to monitor and quantify compliance across large and constantly shifting libraries of material to determine whether the one-third threshold has been triggered.Still, the opinion preserves room for future challenges, particularly around implementation burdens, data privacy, and whether other approaches could achieve the same ends with fewer constitutional costs. As we’ve noted before in our <a href="https://www.sociallyawareblog.com/topics/just-a-minor-threat-online-safety-legislation-takes-off" target="_blank">close tracking of age-gating legislation</a>, the tension between protecting minors and preserving adults’ expressive rights continues to animate both policy and case law. Now, with the Court signaling that age verification requirements can pass constitutional muster under intermediate scrutiny, the legal fight over online speech is likely to shift from whether the state can regulate to how far it can go, and Paxton may become a doctrinal anchor for courts assessing those efforts.As always, Socially Aware will be watching the docket closely. Something tells us the rest of 2025 won’t be short on constitutional fireworks.