AUSTIN—The ongoing litigation between the Free Speech Coalition, companies that own some of the largest adult tube sites in the world, and the state of Texas has a new twist.
After surviving an impeachment brought on by state lawmakers in his political party, Texas Attorney General Ken Paxton has replaced former interim-Attorney General Angela Colmenero as the defendant in the original case, Free Speech Coalition et al. v. Colmenero, and on Wednesday filed a partial motion to dismiss the lawsuit.
Senior U.S. District Judge David Alan Ezra granted the replacement of Colmenero by Paxton, a far-right attorney general, on October 27.
AVN has reported extensively on the Texas case and the age verification law at issue, House Bill 1181. The bill requires age verification and potentially unconstitutional compelled speech in the format of pseudoscientific public health warnings about pornography consumption.
In the motion to dismiss, Paxton alleges that the adult websites—Pornhub, xHamster, XNXX, XVideos, its premium platforms, and paysites affiliated with these tube sites—aren't entitled to First Amendment rights because they are "foreign websites."
In a preliminary injunction temporarily blocking the age verification law that was later appealed to the Fifth Circuit Court of Appeals, Judge Ezra said that "the foreign website plaintiffs in the instant case do operate in the United States for all purposes relevant to this litigation. As regulated by HB 1181, their speech and conduct occurs in Texas."
Paxton also argues that the plaintiffs aren't protected by Section 230 of the Communications Decency Act of 1996 because foreign companies own the websites. Ezra said that case law makes no distinction between what sites on the internet are entitled to third-party immunity under the safe harbor, granting web platforms the ability to self-regulate and moderate content without intervention from state and federal governments.
Legal scholarship widely accepts that foreign persons and entities have First Amendment rights within the United States. This argument has been advanced in response to such cases as both the Trump and Biden administrations floating ideas of banning social media app TikTok from the United States market due to concerns over surveillance against American citizens and nationals by the Chinese Community Party and the People's Republic of China.
"Postings on TikTok are protected by the First Amendment since they are a form of speech," writes James Andrew Lewis, a senior vice president at the Center for Strategic & International Studies, a foreign policy think tank. "This means they cannot be banned any more than a person who wishes to access Russian propaganda can be banned from reading Pravda or RT."
The age verification case is still before the U.S. District Court for the Western District of Texas. Before substituting for Paxton, Colemenro appealed the preliminary injunction to the Fifth Circuit.
The Fifth Circuit accepted the appeal and issued an administrative stay on Ezra's preliminary injunction blocking House Bill 1181, allowing the law to enter force for the remainder of the litigation.
Vixen Media Group—the parent company of premium adult websites like Blacked, Blacked Raw, Vixen and MILFY—has started sharing the so-called "public health" warnings with users from Texas IP addresses.
