WASHINGTON—Texas Attorney General Ken Paxton, an anti-porn far-right Republican, told the U.S. Supreme Court in a new filing made last week that age verification laws are “modest” laws to fight a so-called “public health crisis” linked to online pornography.
Paxton’s latest filing challenges the arguments made by the plaintiffs in the case Free Speech Coalition et al v. Paxton. The adult entertainment industry trade group the Free Speech Coalition and the parent companies of the largest adult entertainment websites in the world filed suit against Texas House Bill (HB) 1181, a highly controversial age verification measure targeting adult content platforms as a means to “protect” public health. There is no indication that porn is a public health crisis or addictive like a drug.
"Texas seeks to protect kids from some of the most prurient sexual content imaginable. And the means Texas has chosen is appropriate," Paxton wrote in his brief. "Texas has addressed only websites dedicated to pornography, has allowed them to comply by using common age-verification technology, and has not imposed criminal penalties."
He adds, "Such a modest but important law satisfies any level of scrutiny." Plaintiffs in the case maintain that HB 1181 isn't modest and is an unreasonable measure. After a tumultuous legal showdown in federal district court in Austin and a fight at the conservative Fifth Circuit, the plaintiffs were able to appeal and get the case heard before the also conservative high court. Throughout the filing, Paxton argues that HB 1181 doesn't violate the First Amendment. That question is central to much of the case in the first place. Due to implications covering protected forms of expression, FSC and porn companies are represented by the American Civil Liberties Union (ACLU) and private counsel.
Case law dictates that laws that potentially infringe on the First Amendment must undergo strict scrutiny by a judge or panel of judges.
Strict scrutiny is a higher burden of proof to which the people who defend these laws are held. However, the Fifth Circuit ruled HB 1181 constitutional in a prior court ruling using a lower standard of proof called rational review. First Amendment rights cases like this one are almost never ruled on using rational review.
Corey Silverstein, a First Amendment attorney who specializes in representing adult industry clients, told AVN that he isn't surprised Paxton is arguing to the high court that HB 1181 has nothing to do with the violation of speech rights for adult industry companies and consumers. Paxton has long argued this claim.
“Nonetheless, he’s outright wrong and ignores existing precedent,” Silverstein said. “I do not think that the justices are going to buy what Mr. Paxton is selling, and I remain confident after reviewing Mr. Paxton’s brief that the Supreme Court will overturn the Fifth Circuit erroneous decision,” which affirmed the supposed constitutional nature of HB 118. Silverstein filed an amicus brief for civil society groups like the Woodhull Freedom Foundation and the Electronic Frontier Foundation (EFF) in support of the plaintiffs.
An amicus brief was filed by the state lawmakers who sponsored HB 1181 and the American Family Association (AFA) in support of Paxton and the state of Texas. AFA is a fundamentalist Christian anti-LGBTQ group regarded by the Southern Poverty Law Center, the Human Rights Campaign and GLAAD as a hate group. Other parties named in the amicus brief include state lawmakers from 15 legislatures, including Texas, such as Utah state Sen. Todd Weiler. He is on the far right and a member of the LDS Church.
Other amicus briefs are expected to be filed on behalf of Paxton, including a brief from the Age Verification Providers Association (AVPA), led by its head, Iain Corby. Corby has previously told AVN that his association's filing would cover the technical components of age-gating technology. The AVPA was also cited by the AFA amicus brief as an authority. Corby has previously sided with confirmed anti-LGBTQ+ hate groups identified by the Southern Poverty Law Center, like the California Family Council.
Oral arguments in this case are scheduled for January 15, 2025, per the docket.
