Judge Orders Tennessee to Face Free Speech Claims in AV Lawsuit

Mike Stabile, the director of public policy for FSC, echoed Sandman's sentiments. Stabile told AVN, "While the road ahead is still long, this was a crucial victory, and shows the strength of our arguments."

FSC sued the state when the Republican-controlled Tennessee General Assembly implemented the Protect Tennessee Minors Act (PTMA).

As AVN previously reported, FSC refiled an amended complaint against Tennessee in a bid to block the age verification, as it imposes penalties of felony charges and up to 15 years in prison. The law was amended to reflect the legal structure of the Texas age verification law, House Bill (HB) 1181, and to make it further analogous to a ruling issued by the conservative U.S. Supreme Court over the constitutionality of the Texas law.

The Supreme Court ruling in Free Speech Coalition et al. v. Paxton was the justification for the alleged constitutionality of age verification across the board. But for Stabile and others with whom AVN spoke, the immediate ruling is a clear sign that states adopting age verification are likely to have committed overreach in regulating digital access to online adult platforms.

"The Paxton case may have established precedent, but it did not give states carte blanche to restrict adult content, and we will continue to fight back against unreasonable mandates and regimes," Stabile said.

Corey Silverstein, a First Amendment attorney focused on adult entertainment clients, echoed, "This [ruling] is an important reminder that the Supreme Court’s decision in Free Speech Coalition v. Paxton did not give [the] states a blank check to regulate constitutionally protected adult speech however they see fit."

Lipman wrote in her order denying Skrmetti's motion, "[The] plaintiffs allege that the PTMA is 'substantially overbroad' in violation of the First Amendment. Neither party discusses this claim in their briefing, and they frame their First Amendment arguments in terms of the PTMA satisfying intermediate scrutiny, not in terms of its alleged overbreadth.

"Yet, there is no question that the scrutiny and overbreadth analyses are different," Lipman notes, referencing the "overbreadth doctrine."

The Free Speech Center at Middle Tennessee State University notes that overbreadth doctrine "provides that laws regulating speech can sweep too broadly and prohibit protected as well as non-protected speech." Judge Lipman observed that invalidating "a law based on overbreadth is 'strong medicine,'" and that it requires plaintiffs to "demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally.

"[Skrmetti] makes no challenge to the overbreadth claim, so the court need not consider its plausibility," notes the judge. "Therefore, plaintiffs’ overbreadth claim survives dismissal." Lipman also notes that plaintiffs in the case, which include the parent company of the creator platform JustFor.fans, were able to argue that the PTMA is preempted by federal law under the Communications Decency Act. Preemption claims survived dismissal, adding that there is a state-federal conflict between online safety laws at both levels of government.

There are also concerns over vagueness in the law violating the Fourteenth Amendment. Lipman observed, "What of [the terms] 'commercial entity' and 'commercially reasonable?' Skrmetti insists that those terms are not vague because they appear in other statutes. ... Moreover, that the PTMA has a scienter requirement does not mean the vagueness claim is implausible, especially because it is a criminal statute that touches First Amendment rights." What this means is that the enforcement of the PTMA is so vague and sweeping that it could cause direct conflicts with an individual's or entity's civil liberties and civil rights. Here, Lipman notes that the PTMA is additionally a "criminal statute" touching speech rights.

"Tennessee’s law presents its own serious constitutional and statutory issues, and the court has now determined that the plaintiffs have sufficiently pleaded First Amendment and Fourteenth Amendment claims to allow the case to move forward," observed Silverstein, adding that it is "equally noteworthy" that the court permitted the preemption claims

Silverstein concluded, "This ruling is not a final determination that the Tennessee law is unconstitutional, but it is significant because Tennessee attempted to use [the Paxton case] to effectively end this litigation at the pleading stage, and the court declined to do so. The constitutional debate surrounding online age verification is far from over."

Lawrence Walters, another First Amendment attorney with a significant adult industry clientele, told AVN that Lipman's ruling is "instructive on how age verification law challenges may be analyzed after Paxton*."* He said, "The court notes that merely because Paxton upheld the Texas law under intermediate scrutiny does not mean that a different statute, like Tennessee’s, will automatically survive a constitutional challenge. Tennessee’s law is very different from the Texas law, as it imposes criminal penalties.

"These variations may be enough to justify a different result than occurred in Paxton, when the case is heard on the merits," Walters added.

Ricci Joy Levy, the president and chief executive officer of the human rights charity the Woodhull Freedom Foundation, supported such arguments by indicating that "states cannot evade the First Amendment by calling censorship ‘protection.’"

Levy, who works with Walters, as he is general counsel for Woodhull, told AVN, "Age-verification laws force adults to surrender privacy before accessing lawful speech, while doing little to address the real challenges young people face online. We are pleased the court recognized that these serious constitutional and privacy concerns deserve to be heard.”

Skrmetti's office has not released a statement on the ruling handed down by Lipman, nor did the office return AVN's request for comment.