Fide Valverde-Rivera, MJLST Staffer
In September 2025, an Ohio law requiring websites that purvey obscene material to verify users’ ages went into effect.[1] Although this law sought to regulate pornographic material and platforms that distribute it, it erroneously exempts some of the largest pornographic websites from compliance while mandating compliance by regular social media sites. Because of this unintended consequence, this law is very likely unconstitutional.
General Overview of the New Law and Implementation Problems
Ohio’s new age verification law requires platforms that provide “any material or performance that is obscene or harmful to juveniles” to verify users’ ages.[2] The law exempts “providers of ‘an interactive computer service,’ which is defined . . . as having the same meaning as it does under federal law” from having to comply with the age verification requirements.[3] Federal law defines an “interactive computer service” to include “any platform where third parties can create accounts and can generate content, from social media sites to dating apps, message boards, classified ads, search engines, comment sections, and much more.”[4] Platforms like Pornhub and OnlyFans, two major pornography websites, arguably fall within this definition and qualify for the exemption.[5] Accordingly, Pornhub and OnlyFans are not conducting age verification for Ohio users.[6] However, general-purpose social media platforms like Bluesky—a type of platform lawmakers said would be outside of the law’s scope—have been mandated to begin age verification.[7]
Constitutional Considerations
The first step in evaluating the constitutionality of this law requires determining the appropriate level of scrutiny with which it should be examined. In Free Speech Coalition, Inc. v. Paxton, the Supreme Court held that “because accessing material obscene to minors without [age verification] is not [a] constitutionally protected [activity], any burden [an age verification law] imposes on protected activity is only incidental, and the statute triggers only intermediate scrutiny.”[8] It held that it was not subject to strict scrutiny because “speech that is obscene to minors is unprotected to the extent that [a] State imposes an age-verification requirement” and “where the speech in question is unprotected, States may impose ‘restrictions’ based on ‘content’ without triggering strict scrutiny.”[9]
Under intermediate scrutiny, the Supreme Court in Paxton found the Texas age-verification law constitutional for two reasons.[10] First, the law served an important government interest: shielding sexual content from children.[11] Second, the law was adequately tailored in that “the government’s interest ‘would [have been] achieved less effectively absent the regulation’ and the regulation ‘[did] not burden substantially more speech than is necessary to further that interest.’”[12] Age verification laws are a constitutionally-settled way to protect children from obscene material, and Texas’s preferred approach was valid.[13] The Supreme Court in Paxton also held the statute’s targeting of certain sites did not render it unconstitutional because “it [was] reasonable for Texas to conclude that websites with a higher portion of sexual content are more inappropriate for children to visit than those with a lower proportion.”[14]
Bottom Line
Here, Ohio’s age-verification law is very likely unconstitutional because it fails to shield children from sexual content. Because platforms with higher proportions of sexual content, the intended targets of this law, are outside of the scope of the law, the law is not adequately tailored to survive an application of intermediate scrutiny. Additionally, the law is overinclusive because social media sites on which obscene content generally represents a minority of the content are bound by the law. Based on these shortcomings, lawmakers and judicial officers alike should anticipate an interested party or parties advancing a facial challenge attacking the constitutionality of this law under the First Amendment. Further, platforms like Bluesky may attempt to advance an as-applied challenge by noting that the law—although written to target pornography websites without “ensnar[ing] social media platforms”—fails to achieve its articulated objectives.[15]
Notes
[1] Ohio Rev. Code § 1349.10(B) (2025).
[2] Id.
[3] Elizabeth Nolan Brown, Whoops—Ohio Accidentally Excludes Most Major Port Platforms from Anti-Porn Law, Reason (Oct. 6, 2025, 11:45 AM), https://reason.com/2025/10/06/whoops-ohio-accidentally-excludes-most-major-porn-platforms-from-anti-porn-law/.
[4] Id.
[5] Id.
[6] See id. (“I’m assuming that the exclusion of Pornhub was not intentional, given the way this law’s supporters talked about as a shield against Ohio minors being able to see any sexually oriented material online. One of the law’s biggest proponents, state Rep. Josh Williams (R-Sylvania), has talked about how it would not ensnare social media platforms even though they may contain porn, so perhaps the exclusion of interactive computer services was intended for that purpose. But most major web-porn access points, including OnlyFans and webcamming platforms, also fall under the definition of interactive computer service.”)
[7] See Morgan Trau, Do You Live in Ohio? Do You Watch Porn Online? Your State Legislature Wants to See Some ID, Ohio Cap. J. (Oct. 1, 2025, 4:45 AM), https://ohiocapitaljournal.com/2025/10/01/do-you-live-in-ohio-do-you-watch-porn-online-your-state-legislature-wants-to-see-some-id/ (“[Rep. Josh] Williams said that this [law] won’t impact social media sites like X (formerly known as Twitter) and Reddit, even though both of those platforms contain easily-accessible pornography”); @psychic_twin, Reddit (Sept. 29, 2025, 2:00 PM), https://www.reddit.com/r/Ohio/comments/1ntqr4w/ohio_age_verification_notice_on_bluesky/ (sharing how Bluesky required Ohio users to complete age assurances because “[t]he laws in [the user’s] location require[d] [them] to verify [they’re] an adult before accessing certain features on Bluesky, like adult content and direct messaging”).
[8] Free Speech Coalition, Inc. v. Paxton, 606 U.S. 461, 483 (2025).
[9] Id. at 492.
[10] Id. at 495–96.
[11] Id. at 496.
[12] Id.
[13] Id. at 496–97 (“The specific verification methods that H.B. 1181 permits are also plainly legitimate. At present, H.B. 1181 allows for verification using government-issued identification or transactional data. Verification can take place on the covered website itself or through a third-party service. Other age-restricted services, such as online gambling, alcohol and tobacco sales, and car rentals, rely on the same methods. And, much of the online pornography industry has used analogous methods for decades . . . . 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.” (internal citations omitted)).
[14] Id.
[15] Nolan Brown, supra note 3.