Analysis: Indiana AV Ruling a Much Needed Win for Adult Industry

INDIANAPOLIS—The adult entertainment industry was handed a much-needed legal victory on Friday. Senior U.S. District Judge Richard L. Young for the Southern District of Indiana ruled that Senate Bill (SB) 17 was "facially" unconstitutional and issued a preliminary injunction enjoining state Attorney General Todd Rokita from enforcing the anti-porn law.

AVN reported on the ruling Friday when the Free Speech Coalition (FSC), the lead plaintiff in the case alongside the parent companies of some of the largest adult websites in the world, announced the preliminary injunction via its website. FSC argues that SB 17 violates the First Amendment rights of porn websites and users. 

Republican state Sen. Mike Bohacek introduced SB 17, which requires mandatory age verification for adult entertainment websites. SB 17 passed through the state legislature and was signed by Republican Gov. Eric Holcomb. The new law was expected to enter force on July 1. 

"If Indiana were truly interested in protecting minors from seeing adult content, it would have imposed age verification requirements wherever those images are found, not by selectively determining which websites displaying adult content present the most danger," District Judge Young wrote in the ruling. "In sum, the act does not sufficiently advance the government's interests in protecting minors from harmful obscene speech because minors can easily circumvent the law using technology or searching for websites not covered by the act."

Rokita's office argued that age verification laws in other states are proving to be effective and don't limit the First Amendment rights of adult users. The attorney general cites another case involving industry stakeholders and the state of Texas currently before the U.S. Supreme Court, Free Speech Coalition et al. v. Paxton, and a ruling handed down by the U.S. Fifth Circuit Court of Appeals clarifying that age verification requirements that specifically target porn websites are constitutional. This case is pending an application for a writ of certiorari.

Young noted that the Fifth Circuit judges didn't apply strict scrutiny in their review of the Texas law, as the Supreme Court requires when considering the implications of whether a law discriminates against a class of individuals or violates their civil liberties. The consensus of the federal judiciary is that any content-based restriction or law must pass muster. The government must prove that the First Amendment isn't violated when the law is narrowly tailored and is the least restrictive means of advancing a compelled government interest.

The Fifth Circuit used a rational basis scrutiny standard, which is a much lower standard than strict scrutiny. First Amendment cases involving laws that restrict content and viewpoints have historically been placed under strict scrutiny during judicial review. Case law affirms this, but Judge Young criticized the Fifth Circuit for relying on a lower standard of scrutiny to justify a law that could potentially restrict and censor forms of otherwise protected speech in the name of child protection.

Rokita's reliance on the Fifth Circuit ruling isn't surprising. Rokita is a conservative Republican. The Fifth Circuit is considered one of the most conservative appellate courts in the country. While the panel of three judges in the Fifth Circuit case wasn't unanimous, split 2-1, the majority potentially erred when they chose to buck decades of First Amendment case law, including landmark decisions that rendered placing age-gates on content and segregating the internet by age violated free expression rights for not only adults but minors. Luckily, Rokita's failure to defend the law advances the free speech case.

"Where the government crafts a regulation that burdens a significant amount of speech beyond the core purpose of the statute (i.e., limiting [an] adult's ability to view speech to protect minors' sensibilities), the statute becomes vulnerable to a facial attack because overbroad regulations 'have the potential to chill, or deter, speech outside their boundaries,'" says Young.

Attorney General Rokita is expected to appeal the decision to the U.S. Seventh Circuit Court of Appeals. Having differing opinions and rulings on age verification would be helpful so the Supreme Court is compelled to settle the issue across the various appeals courts. The Fifth Circuit case is pending at the Supreme Court, as mentioned. The Free Speech Coalition and a class of industry plaintiffs first sued in Utah over its age verification bounty law but were handed a loss on technical grounds. The plaintiffs appealed that ruling to the Tenth Circuit, and that case is ongoing. FSC and stakeholders also sued in a federal district court in Montana, which is covered by the U.S. Ninth Circuit Court of Appeals. In an ideal scenario, appeal court rulings that dispute each other across the board are potentially a viable legal strategy that would prompt a necessary review of the cases by the conservative-leaning high court.

"Judge Young's thorough order on the granting of the plaintiff's motion for preliminary injunction was thoroughly written and will certainly be appealed by the state of Indiana to the [Seventh Circuit], setting up a potential circuit court split," adult industry attorney Corey Silverstein told AVN.

"I was concerned that Indiana's age verification bill challenge would be difficult because of another conservative judiciary; however, the plaintiffs, fortunately, drew a judge who has not been afraid to take on controversial laws such as Indiana's banning of same-sex marriages," Silverstein added, mentioning that Young handed down a 2014 decision that found Indiana's ban on same-sex marriage was unconstitutional.

Silverstein added, "This decision was a much needed win for the adult industry that has been fighting hard in the face of a relentless attack by conservative politicians across the country attempting to regulate speech under the guise of protecting minors." 

It is also worth noting that Silverstein, among other counsel like Larry Walters of the Walters Law Group, filed an amicus brief on behalf of the Woodhull Freedom Foundation and the Electronic Frontier Foundation, urging the Supreme Court to take up the Paxton case.