WASHINGTON—Now represented by the American Civil Liberties Union (ACLU), plaintiffs led by the Free Speech Coalition have filed a petition for writ of certiorari to have the Texas age verification case reviewed by the U.S. Supreme Court. The coalition announced the development in a joint press release with the ACLU, published on April 12.
"Though it purportedly seeks to limit minors' access to online sexual content, the law, in fact, imposes significant burdens on adults' access to constitutionally-protected expression, requiring them to provide personal identifying information online to access sensitive, intimate content," declared Vera Eidelman, a staff attorney with the ACLU's Speech, Privacy, and Technology Project. "This isn't the first time that concerns about minors' access have led legislators to pass unconstitutional laws."
The ACLU took up the case through its foundation. Attorneys for law firm Quinn Emanuel Urquhart & Sullivan LLP represent the plaintiffs. The Free Speech Coalition (FSC) serves as the lead plaintiff with a class featuring the parent companies of the largest adult entertainment websites in the world, including Pornhub, Xnxx and XVideos.
At question is House Bill (HB) 1181, which was adopted by the Texas state legislature in 2023. The law requires age verification for adult entertainment websites that operate in the Texas digital space. One of the more contentious parts of the law is that it requires "health warnings" of the supposed harms of watching pornography.
FSC sued Attorney General Ken Paxton, seeking to block the law. At the time, Paxton was the target of an impeachment trial in Texas and was temporarily replaced by then-acting Attorney General Angela Colmenero. After Paxton was acquitted, he returned to the lead role as a respondent in the lawsuit brought by the adult industry companies.
In the initial ruling, Senior U.S. District Judge David Alan Ezra of the Western District of Texas declared HB 1181 unconstitutional and enjoined the state from enforcing its provisions. Texas officials quickly appealed the temporary injunction handed down by Ezra to the notoriously conservative U.S. Fifth Circuit Court of Appeals.
The Fifth Circuit issued an administrative stay on the federal district court's temporary injunction allowing HB 1181 to enter force. Paxton's office began enforcing the law by targeting the parent companies of Pornhub, xHamster, and Chaturbate in local courts for violating the law.
A split panel of the Fifth Circuit ruled, 2-1, that the age verification requirements in HB 1181 are constitutional. The panel of judges did agree with the plaintiffs that the so-called health warnings about the supposed harms of pornography and the requirement to publish them prominently on pornography websites violated the First Amendment.
Shortly after, counsel for the Free Speech Coalition and adult industry plaintiffs filed a motion with the Fifth Circuit to stay the case while a petition to the Supreme Court was processed. This stay would have effectively stopped the enforcement of HB 1181 during the proceeding of litigation.
The ACLU and counsel representing the Free Speech Coalition are pressing for a Supreme Court review of the Fifth Circuit's ruling finding age verification constitutional.
"In states where these laws have passed, the vast majority of users have refused to comply, leading to a massive chilling effect on their legal right to access constitutionally protected speech," said Alison Boden, executive director of the FSC, in the same joint press release as the ACLU's Vera Eidelman.
"Adult sites are the canary in the coal mine of free speech, and we look forward to defending the rights of all Americans to access the internet free from surveillance."
The ACLU filed an amicus brief in support of the plaintiffs with a coalition of other civil society organizations, such as the Electronic Frontier Foundation and the Woodhull Freedom Foundation, during litigation over whether the Fifth Circuit should uphold the initial temporary injunction blocking enforcement of House Bill 1181.
Despite its conservative majority, the lawsuit may be accepted for review by the Supreme Court. The case is Free Speech Coalition et al. v. Paxton.
One of the key arguments the plaintiffs make is that House Bill 1181 violates existing case law, including the landmark high court decision in Reno v. ACLU.
In Reno v. ACLU, the high court found that it was unconstitutional for the government to segregate entire swaths of the internet by age.
"We’ve gone through this time and again, with everything from drive-in movies to video games to websites, and courts have repeatedly struck down laws imposing requirements that burden adults’ access to non-obscene sexual content in the name of protecting children," concluded Eidelman.
Aylo, the parent company of Pornhub, blocked all Texas IP addresses in March 2024.
