The American Enterprise Institute (AEI), a conservative think tank often aligned with regulatory restraint and free-market values, has taken aim at the U.S. Supreme Court’s decision in Free Speech Coalition et al. v. Paxton.

In a detailed analysis, Clay Calvert, a nonresident senior fellow at AEI and professor emeritus of law at the University of Florida, argued that the Court’s conservative majority created a dangerous carve-out that weakens First Amendment protections when it comes to online sexual expression.

At issue was Texas’s age-verification law, which requires adults to upload personal identifying information to access sexually explicit websites. The Free Speech Coalition (FSC), the primary trade group representing the adult entertainment industry, challenged the law on First Amendment grounds, arguing that it imposes an unconstitutional burden on adults’ right to access lawful speech.

But in a majority opinion written by Justice Clarence Thomas, the Court upheld Texas’s law, reasoning that sexual material “harmful to minors” is only “partially protected” speech. On that basis, the Court applied a less exacting standard than strict scrutiny, concluding that Texas’s interest in shielding children outweighed the burdens on adults.

Calvert notes the irony of Thomas’s opinion. Just a decade ago, in Reed v. Town of Gilbert, Thomas himself insisted that any content-based regulation of speech must face strict scrutiny, the highest standard of judicial review. Yet in Free Speech Coalition, Thomas pivoted toward a proportionality review that closely mirrors the late liberal Justice Stephen Breyer’s preferred approach.

“Thomas called strict scrutiny ‘unforgiving’ and ‘ill-suited’ for the nuanced work of evaluating age-verification requirements,” Calvert wrote. “That’s virtually the same proportionality language Breyer used to argue for greater flexibility in free speech cases — an approach conservatives long rejected as too soft.”

Calvert also criticized the rhetorical strategy in Thomas’s majority opinion. When describing the Free Speech Coalition, Thomas referred to it as “a trade association for the pornography industry.”

That choice of words, Calvert argues, was deliberate:

“Pornography is not a legal term. It’s a disparagingly loaded word. By calling the FSC a trade association for the pornography industry, Thomas made it easier for the public and even other judges to stomach a decision that burdens their own First Amendment rights.”

FSC itself avoids the term, describing its mission as protecting “the rights and freedoms of both the workers and businesses in the adult industry.”

The Court’s ruling was narrow, applying only to sexual material that’s protected for adults but considered “obscene to minors.” But Calvert warns that the precedent could open the door to broader state-level restrictions if judges embrace this more flexible, proportionality test instead of strict scrutiny.

The AEI critique is striking, given that many conservative legal scholars otherwise champion parental rights and child-safety initiatives online. Here, however, AEI is warning that the conservative Court may be undermining free speech principles in the process.

“Semantics and standards matter. The Court’s majority blurred both, and in doing so, chipped away at the strongest First Amendment protections we have.”