WASHINGTON—In the latest update of the docket, a major anti-pornography group has filed an amicus brief in support of Texas Attorney General Ken Paxton asking the U.S. Supreme Court to keep a controversial age verification law in place that targets explicitly adult entertainment websites in the Lone Star state.
The Alliance Defending Freedom (ADF), a far-right conservative Christian anti-pornography public interest law firm and a Southern Poverty Law Center-classified anti-LGBTQ+ hate group, filed an amicus in Free Speech Coalition et al. v. Paxton. Adult industry trade group the Free Speech Coalition and the parent firms of the world’s largest adult platforms sued Paxton and the state of Texas to block House Bill (HB) 1181 from being enforced and render it unconstitutional.
A legal showdown at the federal district court in Austin and at the U.S. Fifth Circuit Court of Appeals in New Orleans has landed the First Amendment case at the highest court in the land, with oral arguments scheduled for January 15, 2025.
In its amicus brief, ADF argues that age verification laws are necessary to protect internet users from “obscenity.” The group also tries to support Paxton’s legal theory that the Fifth Circuit, a notoriously conservative appeals circuit, was justified in applying a lower standard of scrutiny to determine the constitutionality of HB 1181.
This coincides with another amicus brief filed by religiously conservative state lawmakers and affiliates of the American Family Association (AFA). The AFA is also classified as an anti-LGBTQ+ hate group by the Southern Poverty Law Center.
AVN reported earlier this week that Paxton filed a briefing responding to the petitioners and the adult industry stakeholders, justifying the Fifth Circuit’s use of rational review. Since the initial complaint challenges HB 1181 on First Amendment grounds, it is customary that courts—regardless of the level of the court—apply strict scrutiny. Strict scrutiny is a significantly higher level of scrutiny that requires the government to justify how a certain law does not violate the First Amendment rights of its constituents. Age verification mandates like HB 1181 have historically been challenged and struck down.
The Fifth Circuit did not apply strict scrutiny, however. Because of this, the U.S. government has also raised its concerns about the inconsistency.
Elizabeth Prelogar, the outgoing U.S. Solicitor General, filed a motion on behalf of the Department of Justice urging the high court to send the case back to the Fifth Circuit, mandating the application of strict scrutiny. To make this case, Prelogar also motioned the court to allow her to make an oral argument on January 15.
“In light of the substantial federal interest in the question presented, the United States’ participation in oral argument could materially assist the [high] court in its consideration of this case,” Prelogar’s motion reads. She filed an amicus brief supporting vacatur to remand the case back to the Fifth Circuit, noting that “the United States’ brief argues that the court of appeals’ judgment should be vacated and the case remanded for application of strict scrutiny.”
Prelogar also notes that a ruling based on strict scrutiny, either at the high or lower court, is necessary as the U.S. Congress could adopt legislation that would outright require age verification nationally or will require internet platforms to adhere to an age-appropriate design code for user experience. She explicitly names the likelihood of the Kids Online Safety and Privacy Act passing before the end of the current Congress or in the next session that convenes in January 2025.
The Kids Online Safety and Privacy Act (KOSPA) is the current iteration of the controversial Kids Online Safety Act that many lawmakers have failed to pass for many years. Lame-duck President Joe Biden endorses KOSPA and will likely be supported by Republican President-elect Donald Trump’s incoming administration.
Many organizations backing the Free Speech Coalition, like the American Civil Liberties Union, oppose KOSPA as it could violate speech rights.
