AUSTIN, Texas—A federal appeals court has ruled that the state of Texas can enforce elements of a controversial age verification law targeting adult entertainment platforms after members and a trade group representing the industry filed suit to block the law.
The plaintiffs in the suit are led by the Free Speech Coalition and the parent companies of the largest adult platforms in the world. Plaintiffs include the parent companies of Pornhub, XVideos, Xnxx, and their affiliated paysites and membership-based platforms.
A federal district judge sided with the porn companies last August, issuing a preliminary injunction enjoining the enforcement of the whole law.
Texas, through then-acting Attorney General Angela Colmenero, appealed the injunction. Colmenero represented Texas at the time due to the absence of Attorney General Ken Paxton as a failed impeachment trial against him proceeded.
He rejoined the case soon after. The appeals court issued an administrative stay on the injunction allowing HB 1181 to be enforced.
Paxton's office recently sued Aylo, the parent company of Pornhub, for violations of the law. He seeks millions of dollars in damages.
House Bill (HB) 1181 can be enforced in part, according to the U.S. Fifth Circuit Court of Appeals. The Fifth Circuit is viewed as a very conservative court. Such a ruling isn't surprising, but one key element that was blocked is HB 1181's so-called health labeling rule.
The court ruled that the law doesn't violate the First Amendment because it serves the "legitimate interest" of keeping minors from viewing online porn. However, it reinstated the injuntion on the law's requirement for companies to post pseudoscientific health warnings.
During the legislative process, the Texas state legislature attached a requirement for all adult platforms hosting users from local IP addresses to not only verify the age of users but also prominently publish warnings disclosing the supposed public health harms of watching porn. Initially, the law required a porn site, like Pornhub, to post these labels with the supposed endorsement of the Texas Health and Human Services (HHS) Commission, claiming that porn is addictive, contributes to sex trafficking, or causes other harm.
It also required the porn site owners to publish a mental health support toll-free telephone hotline operated by the Substance Abuse and Mental Health Services Administration, a federal agency within the U.S. Department of Health and Human Services.
Senior U.S. District Judge David Alan Ezra of the Austin Division of the Western District of Texas found that the labeling requirement violates the Zauderer test. Zauderer indicates that a private company's First Amendment rights aren't violated if public entities make it a requirement to compel those companies to share speech that is generally accepted and factual. An example often used is how controlled product companies are required to share the Surgeon General's warning on the harms of smoking cigarettes or how drinking an alcoholic beverage while pregnant could cause harm to a fetus. Statements like these are generally accepted as factual.
"We are not scientific journal editors, much less social scientists, behavioral experts, or neurologists," reads the court's opinion. "Therefore, the record leaves us with no option but to declare that the health impacts of pornography are currently too contentious and controversial to receive Zauderer scrutiny."
This is a significant claim given that the impetus behind HB 1181 was to try and regulate pornography as a public health crisis.
Porn addiction isn't recognized as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.
As it relates to the age verification element of the law, it is worth noting that the ruling justifying the age-gating requirement is likely to be challenged and directly conflicts with years of case law established by the U.S. Supreme Court.
"We disagree strenuously with the analysis of the Court majority," reads a blog post published by the Free Speech Coalition, which goes on to highlight the dissenting opinion issued by Judge Patrick Higginbotham, an appointee of late Republican President Ronald Reagan.
“[T]he Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech," writes Higginbotham in his dissent, deeming HB 1181 a law that "must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.” This recognizes existing case law, including the ruling in Reno v. American Civil Liberties Union that rendered age-based content restrictions online unconstitutional.
"Many of the First Amendment protections Americans hold dear are the result of hard battles fought by the adult industry and others over issues such as these," says the FSC statement. "Over the coming days, we will begin to discuss our next steps in regard to both this lawsuit and others, and will keep our members informed of our progress."
Free Speech Coalition et al v. Paxton is still being litigated at the U.S. District Court for the Western District of Texas.
