A recent action by the Supreme Court on its interim docket with significant First Amendment implications merits more attention. On July 6, the Court allowed a Texas law restricting minors’ access to app stores to remain in effect. The case raises important questions concerning the future application of free speech doctrine to minors.
Following what the internet has dubbed “Woke 1,” conservatives became increasingly attentive to the ideological influences manipulating their children. Texas responded by enacting a number of laws aimed at addressing those concerns. One such law, the App Store Accountability Act (SB 2420), requires app stores to determine the age of their users. Accounts belonging to minors must be linked to a parent or guardian, and minors generally need parental consent before downloading an app or making an in-app purchase. This requirement is referred to as the parental-control mandate, while the preceding age determination is the identification mandate. Governor Abbott said the law will “put Texas kids and Texas parents first.” Opponents say it restricts free speech.
Students Engaged in Advancing Texas (SEAT), a youth organization whose members use apps for political advocacy, challenge the law on First Amendment grounds. They take issue with Texas regulating the problem at the app-store level rather than limiting its restrictions to a narrow category of material inappropriate for minors. In their view, both the identification mandate and the parental consent mandate are unconstitutional. While the former argument is plausible, the latter fails. SEAT’s selection of precedent and historical analysis leaves out key developments in originalist jurisprudence that legal conservatives should take seriously.
First, they cite Brown v. Entertainment Merchants Association (2011), where the Supreme Court struck down a California law restricting minors’ access to violent video games. California argued that it was protecting children from harmful material. Justice Scalia, writing for the Court, rejected the proposition that the government possesses a “free-floating power to restrict the ideas to which children may be exposed.” Minors possess First Amendment rights, SEAT argues, and those rights are violated by both mandates in the Texas law. While minors certainly have free speech rights, they do not have the right to access adult content. This qualifier, which the Brown Court described as content “obscene as to youths [or] subject to some other legitimate proscription,” trips up SEAT’s arguments at key points.
This is not Texas’s first rodeo defending child protection laws against free speech challenges. Last year, the state successfully defended its H. B. 1181, its law preventing children from accessing adult material, at the Supreme Court in Free Speech Coalition v. Paxton (2025). The Court held that the law was subject to lower scrutiny because it only incidentally burdened adults’ access to protected speech. The majority reasoned that states have longstanding authority to prevent minors from viewing material that is obscene as to minors, and adults therefore have no First Amendment right to access such content without verifying their age. There are good reasons to question components of the Paxton majority’s reasoning, but its exception for material unprotected as to minors holds, and hurts the new challenge to Texas’s latest law.
The argument for Texas’s law is simply the protection of children, a demographic that has consistently lost in every major policy debate in recent memory. As professor Josh Gerstein noted on a recent podcast, “the most important political lesson of the entire COVID experience is the weak political power of children.” During the pandemic, schools closed while bars stayed open, vaccines were mandated for children despite having no scientific defense, and the lives of children were put on hold while the world turned upside down. In many ways, America has failed its children, and the argument Texas makes for protecting them is the least a state can make. To counter it, opponents fall back on the First Amendment without realizing there is little there to catch them. They say an app store is not merely a digital liquor store or casino, but akin to a bookstore, newspaper rack, political forum, church bulletin board, library, and marketplace rolled into one. Comparing the digital world to the physical only proves Texas’s point.
A recent case out of the Eleventh Circuit helps demonstrate why. Hamburger Mary’s, a restaurant chain that hosts drag shows, lost a First Amendment challenge to Florida’s Protection of Children Act. Written to prevent conduct that is lewd for minors, the law was upheld by the Court sitting en banc. The key case relied upon was Ginsberg v. New York (1968), which upheld restrictions on minors accessing obscene magazines from a bookstore. If an app store offering lewd materials is treated like a bookstore, then parental-control requirements are constitutionally permissible. SEAT’s claim that “the government could not compel a bookstore to screen patrons and stop minors from purchasing any book without parental approval” is false as a matter of constitutional history and precedent. Given the long historical use of age and identification requirements to keep minors from accessing adult materials, the parental-consent mandate may even be among the least restrictive means of protecting children on the app store.
Texas’s remaining problem is not its objective or the entirety of its execution, but the breadth of its ID requirement. An app store contains an extraordinary range of protected expression. Requiring an age determination at its entrance risks does risk burdening access to speech in ways that traditional physical ID requirements did not. In McIntyre v. Ohio Elections Commission (1995), the Supreme Court invalidated Ohio’s prohibition on anonymous campaign literature. The Court identified a historical tradition of anonymous political expression, dating back to the Federalist Papers famously appearing under the name “Publius.” McIntyre established that anonymity can carry independent First Amendment significance, but it has yet to be applied to restrictions protecting minors. The Court has long held that speech protections are strongest in the political context, but when the audience of the speech shifts to children, those protections dissipate.
When the SB 2420 inevitably returns to the Court, neither a complete reliance on Paxton nor a blind defense of free speech absolutism are warranted. Instead, the Court should allow for the protection of children as Texas sees fit and only strike down parts of the law that lack a historical defense. Currently, SEAT raises a facial challenge to the entire law as passed. If that challenge arrives at the Court, it must fail. America continues to fail its children, but the Constitution does not require it to. Continuing to fail is a choice.
Tamara Nahapetyan is a Presidential Scholar studying political science at The George Washington University. She is a Heritage Academy Fellow and incoming Heritage Foundation intern, a former legislative intern in the U.S. House of Representatives, and Deputy Director of the Eastern Region of the All-Armenian Student Association.
