AUSTIN—Following the lead of civil liberties organizations like the Foundation for Individual Rights and Expression (FIRE) or the American Civil Liberties Union (ACLU), a new coalition of far-right anti-porn organizations has filed an amicus brief in the ongoing litigation over a controversial age verification law adopted by the Texas state legislature.
Leading the coalition of groups that filed the brief in support of the Texas law, House Bill (HB) 1181, is the Council on Pornography Reform (CPR), founded by former child actor Ricky Schroder of NYPD Blue and Silver Spoons fame.
The parent companies of the largest pornography brands in the world and the Free Speech Coalition filed a lawsuit in the United States District Court for the Western District of Texas seeking to block the law, which requires porn sites that maintain a user base from Texas to publish pseudoscientific public health “warnings” about porn.
After Senior U.S. District Judge David Alan Ezra issued a preliminary injunction blocking HB 1181 because it violates the First Amendment, then-acting Texas Attorney General Angela Colmenero immediately appealed the injunction to the Fifth Circuit Court of Appeals.
The notoriously conservative federal appeals circuit took up the case, issued an administrative stay on the preliminary injunction allowing House Bill 1181 to enter force during litigation, and oral arguments were held in early October. But the amicus brief filed by the anti-pornography groups didn’t make headlines in the conservative news media outlets until later in the month.
Speaking on the filing, Shroder told conservative news outlet The Western Journal, “It’s absolutely absurd that they use the First Amendment and freedom of speech as political speech, as the justification for pushing perversion and pornography into our homes, into our pockets.”
He added that in his view, "we need to go further than age verification. ... We need an 'off' switch for those of us who choose not to have it pushed. The rest of you out there in America can have it. Americans love choice. I don't want it pushed to my house, my phone, my kids' phones. Whoever pays that bill should have the right to have the adult content turned off at the service provider level."
CPR’s amicus brief argues that the First Amendment doesn’t protect pornography or obscenity, but rather only protects “political speech.” Upon review of the amicus brief, the counsel representing CPR and the partied groups insinuates that the term “freedom of expression” is “devoid of meaning.”
They also argue for the Fifth Circuit to completely upend decades of Supreme Court case law to push out the longstanding Miller test for obscenity in favor of a “textually faithful” constitutional analysis of the law. Counsel for the amicus parties argue that Judge Ezra utilized Miller and strict scrutiny and “asked the wrong question, and applying the wrong method of analysis, it reached the wrong result.”
Other organizations that are party to the amicus brief filed in the Fifth Circuit include far-right activist lobbying group America’s Future. This organization was founded, in part, by Michael Flynn, a retired military general, former advisor to indicted President Donald Trump, and participant in the Jan. 6 attack on the U.S. Capitol. Public Advocate of the United States is another organization named in the brief. This organization, founded by far-right activist Eugene Delgaudio, was classified by the Southern Poverty Law Center as an anti-LGBTQ+ hate group. Other groups include far-right religious groups, namely the Center for Morality, and textualist legal advocacy organizations.
Represented by First Amendment lawyer Robert Corn-Revere, the amicus brief filed for FIRE, ACLU, TechFreedom, Electronic Frontier Foundation, Center for Democracy & Technology, and Media Coalition Foundation argues that the First Amendment protects legal forms of expression, including pornography. The U.S. Supreme Court has broadly interpreted the First Amendment as a defense for forms of expression, including political speech, art, film, cultural pieces, press, and, of course, religion and spirituality. Ezra developed the argument in the initial ruling preliminary injunction on this assessment, including benchmark Supreme Court case law dating back years.
