FSC v. Paxton after one year: Age verification moves down the stack

This past June marked the one-year anniversary of the Supreme Court’s FSC v. Paxton decision. The Court held that states may require age verification to access online adult content without violating the First Amendment. Applying intermediate scrutiny, the Court reasoned that Texas’s age-verification law only “incidentally burdens” online speech accessible to adults while protecting minors from online adult content harmful to them. Though the FSC v. Paxton decision has (and will likely continue to have) significant repercussions for accessing online adult content, the key questions stemming from this decision now extend to social media and app stores.

Neither the majority nor the dissent in FSC v. Paxton disputed that Texas had a legitimate state interest in protecting minors from sexual material harmful to them. The primary point of dispute between the majority and dissent was over the level of scrutiny applied to state laws that regulate everyone’s access to online adult content.

Texas’s age-verification law (HB 1181) was among a wave of similar state legislation in recent years regarding adult content and age verification. At the time of last year’s Supreme Court decision, roughly 20 states had legislation similar to the Texas law in question. As of this writing, that tally stands at around 25. Broadly, these laws share many key structural similarities, such as maintaining a one-third “substantial portion” threshold for sexual material harmful to minors.

Alongside the accelerated push of adult content age verification at the state level are efforts to mandate age verification for social media, or even app store access. States such as Mississippi, Louisiana, Virginia, Ohio, Utah, and Texas, among others, have been leading the recent push for mandating age verification in domains beyond adult content websites.

Despite last year’s decision and the expanded push, social media age-verification laws have faced significant pushback in the courts. Louisiana, Virginia, Nebraska, and Arkansas (as well as other states) have all seen social media age-verification laws enjoined by federal district courts. At the circuit level, however, the pattern has run the other way. The Fifth Circuit (adjudicating a Mississippi law) and the Eleventh Circuit (adjudicating a Florida law) stayed district court injunctions, allowing those laws to take effect while the appeals proceed. The Sixth Circuit went further still, in a divided decision reversing the district court’s judgment that had enjoined Ohio’s social media parental-consent law.

This split reflects a significant legal distinction between FSC v. Paxton and the state social media laws. While the Court in FSC v. Paxton addressed what level of scrutiny applies to laws restricting access to adult content, the social media cases raise a more fundamental question: are laws regulating access to social media content-based restrictions?

Two Fifth Circuit cases now may have significant consequences for both the social media and app store age verification pushes. Regarding social media, NetChoice v. Fitch concerns a Mississippi law mandating social media age verification and parental consent. The other case, in Texas (CCIA v. Paxton), concerns state app store mandates.

Both laws are, for now, in effect. In NetChoice v. Fitch, a district court enjoined Mississippi’s HB 1126, but the Fifth Circuit stayed that injunction in 2025, allowing the law to take effect while the appeal proceeds. The Supreme Court declined to intervene, though Justice Kavanaugh signaled he considered the law to be likely unconstitutional. The case was reargued before the Fifth Circuit in February 2026.

CCIA v. Paxton has followed a similar path, but on more revealing terms. A district court enjoined Texas’s SB 2420 as a content-based law subject to strict scrutiny. The Fifth Circuit stayed the injunction in June 2026, and the Supreme Court again declined to step in. The difference with Fitch lies in the reasoning. In allowing SB 2420 to take effect, the appeals court treated much of what the app store mandate regulates as commercial speech subject to a more permissive standard of review (notwithstanding the district court’s stricter view).

That divergence matters more than the surface similarity suggests. The app store mandate found firmer footing. Treated as commercial speech rather than a content-based restriction, it faces a more forgiving standard of review, which makes its eventual survival appear more plausible. Social media laws have fared less predictably. They are increasingly allowed to operate, but the courts letting them stand cannot agree on why.

The Eleventh Circuit, lifting the injunction against Florida’s law, called it likely content-neutral (and surviving intermediate scrutiny); the divided Sixth Circuit reversed the district court, with its opinion calling Ohio’s parental-consent law content-based but upholding it anyway as narrowly tailored; and the Fifth Circuit still has not ruled in Fitch following oral arguments earlier this year. The courts are no longer merely split over whether these laws are content-based restrictions; even when they agree that they are, they divide over whether that renders them unconstitutional.

Together these cases form a broad trajectory. The obligation to verify age is migrating down the technological stack (from adult websites to social platforms to app stores) and, so far, these laws are increasingly allowed to take effect, though not always on stable footing.

That should give pause to anyone who reads FSC v. Paxton as a narrow decision. No court has extended its holding, but a case about access to adult websites has (in a single year) become the backdrop to an emerging contest over whether Apple and Google must verify age before a user can download an app. Whether that contest ends where the Supreme Court said FSC v. Paxton did (that is, narrowly) is now the question worth following.