LOS ANGELES—A plaintiff class of adult entertainment industry stakeholders led by the Free Speech Coalition has officially submitted its intent to file an appeal to the U.S. Supreme Court to take on its case challenging the constitutionality of the age verification statute in Texas, reports Bloomberg Law.
The U.S. Fifth Circuit Court of Appeals earlier this month sided with Texas Attorney General Ken Paxton, a far-right lawyer and sharp critic of the porn industry, in regard to the enforceability of House Bill (HB) 1181, the state's controversial age verification law. FSC et al. on Monday filed a motion to stay the Fifth Circuit's ruling pending a coming appeal to the Supreme Court.
The appeal could set up a historical legal fight that could impact not only porn and the internet but First Amendment case law for years ahead.
Alison Boden, executive director of the Free Speech Coalition, declined to comment on the appeal, citing ongoing litigation.
Corey Silverstein, a First Amendment attorney specializing in adult industry clients, told AVN that he's pleased with the news.
"I am thrilled with their decision to appeal to the Supreme Court," Silverstein said. "The 5th Circuit erred terribly in its ruling, and I am hopeful that the Supreme Court, in its wisdom, will dispense with this blatantly unconstitutional law."
"This Court’s decision will thus reverberate across state lines, influencing other legislatures and courts," reads the plaintiffs' motion to stay.
"As the latest in a series of cases involving preliminary injunctions defending adults’ First Amendment rights to protected sexual expression, this case presents 'an important question' that 'should be ... settled by' the Supreme Court ... as the Court did by granting review in Reno, Ashcroft, and other cases involving the First Amendment’s implications for state laws"
Here, the attorneys for the plaintiffs reference recent cases involving NetChoice & CCIA v. Paxton and Moody v. NetChoice & CCIA. In those cases, the Supreme Court was skeptical about state-level restrictions on limiting Section 230 of the Communications Decency Act of 1996.
In 2023, the Texas state legislature adopted HB 1181, targeting adult entertainment websites with "reasonable" age verification requirements and "health" labeling.
The law was supposed to enter force on September 1, 2023, but the plaintiffs, which include the parent companies of the world's largest adult tube sites, filed suit to have it blocked. A federal district issued a preliminary injunction enjoining the state of Texas from enforcing the law as litigation played out.
The issuing judge, Senior U.S. District Judge David Alan Ezra of the Western District of Texas, declared HB 1181 to be unconstitutional, citing existing case law that found segregating the internet by age and maturity level to be against the First Amendment.
Ezra also found that forcing adult entertainment platforms to publish so-called "health" warnings about the use of pornography is unconstitutional. HB 1181 made it a requirement for all adult sites to post "Texas Health and Human Services Warnings," spreading pseudoscientific claims of porn addiction and health matters.
No major medical or public health organization in the United States, including the Texas Health and Services Commission, recognizes porn addiction as a diagnosis or a public health crisis.
Despite this, the state of Texas appealed the preliminary injunction to the Fifth Circuit. A split panel of three judges, 2-1, from the Fifth Circuit declared age verification requirements in House Bill 1181 to be constitutional while siding with Ezra that health labeling requirements were unconstitutional.
The Fifth Circuit, notoriously conservative and often facing long odds of success at the Supreme Court, dismissed decades of case law pointing to age restrictions on the internet as unconstitutional unless Congress was able to adopt more effective and less invasive measures.
So far, critics of the age verification instruments proposed and implemented by state legislatures have found them ineffective and unconstitutional. Given the split decision at the Fifth Circuit on the preliminary injunction, such sentiment is quite broad.
The case is Free Speech Coalition et al v. Paxton. Litigation is technically ongoing at the U.S. District Court for the Western District of Texas. The plaintiffs are represented by attorneys for Quinn Emanuel Urquhart & Sullivan LLP and Webb Daniel Friedlander LLP. Paxton and his office represent the state of Texas.
Paxton sued the parent companies of Pornhub, xHamster, and Chaturbate in state court for violations of House Bill 1181.
The parent company of Pornhub, Montreal-based Aylo, is partied to the ongoing lawsuit against Texas.
