CHICAGO/INDIANAPOLIS—A panel of judges at the U.S. Seventh Circuit Court of Appeals in Chicago granted a stay on a preliminary injunction that halted the state of Indiana from enforcing its controversial age verification statute that specifically targets legally operating adult websites.
The Seventh Circuit also decided to freeze ongoing proceedings in the case until the U.S. Supreme Court rules on a similar law in Texas.
According to the Seventh Circuit, Indiana Senate Enrolled Act 17 (also referred to as Senate Bill 17) is "functionally identical" to Texas House Bill (HB) 1181. The Free Speech Coalition and the parent companies of the largest adult entertainment platforms on the internet sued in a federal district court in Austin, Tex., challenging the constitutionality of HB 1181. The case was found unconstitutional by the federal district judge and constitutional by the notoriously conservative Fifth Circuit. A petition for a writ of certiorari was granted by the U.S. Supreme Court for review, but that was after the high court reaffirmed the Fifth Circuit to allow House Bill 1181 to be enforced by far-right Texas Attorney General Ken Paxton.
The Seventh Circuit judges point to this. The majority of the court argued, "Functionally identical statutes should be treated the same while the Supreme Court considers the matter." One judge who concurred and dissented in part, Senior Judge Ilana D. Rovner, wrote at length, compared to her fellow judges on the case, that she disagreed with her colleagues in granting the stay of the preliminary injunction on Senate Bill (SB) 17.
Indiana Attorney General Todd Rokita, another far-right Republican like Paxton, is now permitted to enforce SB 17 while litigation plays out.
SB 17 was found to be "facially" unconstitutional by Senior U.S. District Judge Richard L. Young of the Southern District of Indiana after the Free Speech Coalition filed suit in federal court in Indiana challenging the age verification statute that was championed by Republican state Sen. Mike Bohacek.
Judge Rovner, despite agreeing on allowing SB 17 to enter force for "judicial efficiency" and allowing abeyance of proceedings in Indiana, characterized the age verification statute as imposing "burdensome requirements" on the plaintiffs that run up against the First Amendment.
She wrote that the Seventh Circuit “merely left the case as it found it, leaving the parties no worse off than they had been.” Keep in mind that the panel of Seventh Circuit judges did not rule on whether Senate Bill 17 was constitutional or unconstitutional.
Rovner added, "[We] impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional."
She also opined that one of the reasons why the Supreme Court took up the Fifth Circuit's decision on finding Texas HB 1181 constitutional on appeal is that it "signals a concern with the Fifth Circuit’s determination of constitutionality, and favors leaving the (Texas) district court’s determination in place."
"A denial of a stay by the Supreme Court, which might turn on the relative harms to the parties and not the merits of the legal claim, is not a decision on the merits of the case, nor is a grant of certiorari," Rovner declared.
She pointed to the fact that SCOTUS declining to block HB 1181 isn't necessarily a victory for Attorney General Paxton in Texas because the high court could revert to the Texas district court's ruling that age verification is unconstitutional.
Attorney General Rokita appeared to have overlooked this portion of the Seventh Circuit's ruling on the preliminary injunction.
He celebrated the ruling in a post to his followers on X featuring a screenshot of the top page of the order.
"Indiana's age-verification law is now enforceable," Rokita cheered. "This is a huge win for Hoosier families, ensuring our children can’t easily access explicit material. We will continue upholding our constitutional duty to defend our laws in court."
The Free Speech Coalition issued the following statement on the Seventh Circuit's ruling:
"In a 2-1 decision, the United States Court of Appeals for the Seventh Circuit has granted Indiana a stay of the preliminary injunction that was granted in June, allowing Act 17, the State’s age-verification law, to go into effect. Adult businesses should be aware that the State’s Attorney General can now begin enforcing the law. Additionally, the law permits residents of Indiana to bring a civil suit against sites with “material harmful to minors.”
Free Speech Coalition’s challenge to Texas’s age-verification law is scheduled to be heard by the Supreme Court in the upcoming term. The Seventh Circuit panel majority ruled that since the Texas law remains in effect during the appeal, so should Indiana’s law."
Corey Silverstein, a First Amendment attorney specializing in adult industry clients and managing partner of Silverstein Legal, offered his reaction:
"It's exhausting having to read these fundamentally incorrect legal decisions written by those that we entrust to uphold the U.S. Constitution and follow existing case precedent. In this case, the majority is incorrect and the (Rovner) dissent seems to be the only person in the room who adhered to her sworn oath.
Common sense alone dictates that the preliminary injunction should have been left alone until the US Supreme Court rules on Texas' age verification law. Yet the majority chose to ignore simple logic and issued a stay that will substantially burden providers offering services in Indiana."
