The Age Gate

Introduction

The internet presents a dilemma for American law. Social media platforms provide young people with opportunities to communicate, learn, and participate in public debate, but state governments have begun to regulate minors' ability to receive or make such interactions.

Some states require platforms to verify ages, while others require parents' consent before minors can create accounts or limit features. Such laws take children's best interests at heart, but they raise a constitutional issue: What limits can the government place on citizens' access to online speech in the name of protecting those who use it?

The answer is not a matter of whether children deserve protection or whether the First Amendment prevents regulation, since both are true. The issue is distinguishing between a law that addresses a legitimate concern without unconstitutionally restricting expression.¹

That is a crucial distinction for legislators trying to regulate digital platforms and courts weighing whether parental authority, public safety, and free expression are being properly balanced.

The Internet as a Constitutional Space

The First Amendment protects not only the right to speak, but to receive, too.

In Reno v. American Civil Liberties Union , the Supreme Court invalidated Communications Decency Act provisions that would have restricted certain online communications. The Court rejected the proposition that Congress could enact broad restrictions on internet speech due to the risks such exposure might pose for minors.² Two decades later, in Packingham v. North Carolina , the Court invalidated a North Carolina law that prohibited registered sex offenders from accessing social media under a broad scope. The Court emphasized the importance of internet access to citizens communicating, sharing information, and engaging in public affairs.³ Neither case is a holding against all regulation, but both illustrate that the First Amendment protects such discourse.

That is also important to keeping minors safe online. A platform is not merely entertaining, but also a space where users may participate in politics, learn, keep up with current events, and discover new ideas.

A law that regulates an internet service could have significantly greater costs than its proponents intend.

The Difference Between Age Verification and Censorship

Laws requiring age verification pose a unique issue because their immediate requirement may concern identity, and not the substance, of an individual's message.

A state may argue that requiring users to confirm their ages does not prohibit protected expression, but instead ensures that minors may only receive services the law allows. But the effects can stretch beyond the requirement for users of an age-restricted platform to confirm their ages.

Adults must also submit themselves to the requirements of the platform, and minors could be denied lawful material if they fail to satisfy the requirements. Platforms must weigh what techniques for verification or parental approval are appropriate.

The Constitution is not asking courts to consider laws only in terms of whether they prohibit speech. A law's requirements can constitute an unconstitutional burden on protected speech, as well. The distinction between regulating access and regulating content is not meaningless, but it is not always dispositive.

Content-Based Laws Face a Higher Hurdle

Laws that discriminate based on the content of the speech to which they apply are subject to strict scrutiny. To satisfy that standard, a regulation must narrowly tailor its restrictions to the governmental interest it serves.⁴ Speech that does not discriminate based on content is subject to intermediate scrutiny, which requires an important governmental interest and sufficiently tailored restrictions.⁵ The distinction can determine the outcome of a law's constitutionality.

Consider a statute that targets platforms for facilitating certain subjects but not others. A law that applies to platforms that address certain topics but not those that address preferred subjects has a clear interest in distinguishing between the two. A law that targets a particular technical capability, however, could be more plausibly interpreted to apply across types of content that users communicate.

The distinction is not always clear-cut, however, as the Supreme Court has recognized that regulations involving speech often require courts to examine a platform's function or purpose without necessarily becoming content based.⁶ In Moody v. NetChoice, LLC , the Court also recognized that online platforms exercise First Amendment-protected editorial judgment when choosing which material to publish or how to organize it.⁷ Governments cannot assume that the technological structure of a platform puts its activities beyond the Constitution.

What Paxton Actually Decided

The Supreme Court addressed online age verification directly in Free Speech Coalition, Inc. v. Paxton , decided in 2025.

The case concerned a Texas law that required age verification for websites that contained certain sexually explicit material. The Court upheld the law under an intermediate scrutiny standard based upon its conclusion that the law's burden on adults' access to protected speech was incidental to its regulation of minors' access to material that they could not constitutionally access.⁸

The Court's decision is important, but its scope is limited.

The decision did not hold that all age-verification requirements imposed on an internet service are constitutional. The law in question concerned a particular category of material and a particular governmental interest.

Social media age-verification laws raise different questions. They can concern platforms that facilitate political debate, news, educational resources, private communications and a wide range of lawful expression, and may require the express parental consent before an account can be created, rather than just establishing a method of age verification. Paxton provides a relevant constitutional analysis, but it is not a universally applicable standard.

The question that courts must consider is whether the reasoning that would uphold one form of age restriction applies to a substantially broader category of online communication.

The Privacy Cost of the Gate

Age verification also presents a separate concern: privacy. Some verification systems may require users to provide identifying information or rely on services that estimate their ages. Whatever technique a platform employs, requiring people to confirm their identities prior to accessing online communication can create additional privacy and security burdens.

The implications extend to anonymous speech. In McIntyre v. Ohio Elections Commission , the Supreme Court recognized the importance of anonymity to political expression. Being able to communicate without publicly disclosing oneself serves to protect individuals from retaliation or discrimination due to their opinions.⁹ An age-verification mandate does not necessarily violate that principle, since a system might verify an age without disclosing one's identity. But legislators must consider how verification works and what information is collected prior to granting access to a communication platform.

A requirement meant to protect minors should not casually disregard the privacy of everyone else.

This concern is particularly acute for statutes that apply to all prospective users, including adults who have no connection to the governmental interest that the law seeks to pursue.

The Courts Are Still Drawing the Line

Recent litigation demonstrates the difficulty of finding constitutional clarity.

In NetChoice v. Hilgers , a district court in Nebraska ruled on June 27, 2026 that the state could not preliminarily enforce provisions of its social media law that require age verification and express parental consent for minors to create accounts. The Court found NetChoice was likely to succeed on its constitutional challenge to those provisions, but not that the other portions of the law, including those containing parental-access obligations were not enjoined.¹⁰

The ruling was preliminary and did not decide all of the constitutional questions that the statute raised.

A separate case concerning Tennessee's social media law reached the Sixth Circuit. On August 28, 2026, the court vacated an order denying NetChoice's request for a preliminary injunction and remanded the case to the district court to reconsider. The appellate court concluded that the costs to compliance and potential loss of First Amendment freedoms could satisfy the requirement for irreparable harm, but did not decide the merits of the constitutional challenge.¹¹

Together, these cases demonstrate why the issue cannot be decided with a single standard. Courts must consider the requirements of each statute, the interests the state asserts, and the burdens imposed on protected expression.

Designing a More Defensible Law

If states intend for age-related regulations to survive a constitutional challenge, the design of the proposal matters.

A law that targets specific features of platforms that are associated with a documented problem may raise different constitutional questions than a blanket restriction on access to a broad category of websites. Avoiding exemptions that favor specific subjects or viewpoints also strengthens the argument that a law is content neutral.

But a different label does not render a restriction constitutional.

Legislators must also establish a connection between the harm they are seeking to address and the requirements they impose. They must consider whether the law reaches considerably more speech than it intends to restrict, and whether it burdens adults as well as minors, as well as consider whether less restrictive alternatives might advance the same objective.

These questions do not require legislatures to ignore the concerns that motivated regulation. They require legislation to actually address those concerns through measures that respect constitutional limits on regulation of online communication.

The First Amendment does not forbid all regulation. It requires that the government must justify restrictions when protected expression is burdened.

Why It Matters

The debate over social media age verification illustrates a challenge to constitutional law: how established principles apply to technologies that transform how people communicate.

The government's responsibility to protect minors is significant, but so is the importance of preserving lawful expression, privacy, and information access.

Treating either as an absolute interest would miss what makes the debate complicated. A regulation can pursue a legitimate objective and still be unconstitutional if it unconstitutionally burdening too much speech.

For courts, the responsibility is to actually evaluate the design and effects of the law, not accept one's stated purpose as justification. For lawmakers, the responsibility is to protect minors without treating access to online communication as a privilege that comes without constitutional safeguards.

Conclusion

Age-verification laws raise a question that reaches beyond social media: when does protecting people justify restricting their access to information?

The answer is determined by more than the law's intent; it considers what the law covers, how it operates, what information it obtains from users, and how substantially it burden protected expression.

Recent court decisions highlight the difficulties, but also illustrate that the Supreme Court's decision in Paxton supports certain age-verification requirements. The government cannot assume that its objectives eliminate the need to respect the First Amendment.

The constitutional challenge is not necessarily one of building a gate around the internet. It is also considering who must pass through it, what they must sacrifice, and whether the law has a justification for placing it there.

1. See Note, Content Neutrality for Kids: Intermediate Scrutiny for Social Media Age-Verification Laws, 139 Harv. L. Rev. 942 (2026).

2. Reno v. American Civil Liberties Union, 521 U.S. 844, 868–70 (1997).

3. Packingham v. North Carolina, 582 U.S. 98, 104–08 (2017).

4. Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015).

5. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

6. City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61, 69–76 (2022).

7. Moody v. NetChoice, LLC, 603 U.S. 707 (2024).

8. Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291, 2314–19 (2025).

9. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341–42 (1995).

10. NetChoice, LLC v. Hilgers, No. 4:26-cv-03149, Memorandum and Order at 25–27 (D. Neb. June 27, 2026).

11. NetChoice, LLC v. Skrmetti, No. 25-5660, slip op. at 19–21 (6th Cir. Aug. 28, 2026).