Ken Paxton Sues Pornhub’s Parent Company Aylo For Alleged Violations Of Texas Anti-Porn Law (original) (raw)

from the everything-is-stupider-in-Texas dept

Texas Attorney General Ken Paxton has sued Aylo, the parent company of Pornhub and some of the most popular adult film studios and premium porn websites. Based in Montreal, Quebec, Aylo (formerly MindGeek) maintains a global media empire of adult sites.

Paxton makes clear in a press release that the lawsuit aims to enforce a controversial age verification and labeling law targeting pornography websites. House Bill (HB) 1181 was adopted by the Republican-controlled state legislature and signed into law by Texas Gov. Greg Abbott. Adult industry groups, including Aylo, filed suit to block House Bill 1181, claiming it was unconstitutional.

A federal district court in Austin agreed with them and issued a preliminary injunction temporarily blocking the law’s enforcement as litigation played out. Angela Colmenero, interim attorney general during Paxton’s impeachment trial for bribery and corruption, appealed to the U.S. Fifth Circuit Court of Appeals. The court lifted the preliminary injunction after it placed an administrative stay on the case during the appeal. Now, the case continues in the federal district court with dispositive motions due in the summer.

What’s noteworthy about Paxton’s lawsuit is the lack of constitutional and scientific justification for HB 1181. It requires “reasonable” age verification measures on websites that are otherwise operating legally, but requires labels expressing supposed public health harms plastered prominently on adult websites.

In a Techdirt column I wrote last August, I refer to Senior U.S. District Judge David Alan Ezra of the Western District of Texas correctly applied the Zauderer test of compelled commercial speech in the case brought by the regulated porn companies of the bill.

The Zauderer test determines whether government officials can compel certain commercial speech without violating the First Amendment rights of an advertiser or publisher. It requires no dispute in the scientific and medical communities regarding the truth and factuality of compelled health-related speech.

“It is unreasonable to warn adults about the dangers of legal pornography in order to protect minors,” Ezra wrote in the opinion granting the preliminary injunction. “But even assuming this was a cognizable interest, Zauderer would still not apply.” One of the more glaring elements of House Bill 1181 was that it requires that the owners of adult websites publish the phone number to a federal mental health and substance abuse helpline administered by the Substance Abuse and Mental Health Services Administration (SAMHSA).

“It does not assert a fact, and instead requires companies to post the number of a mental health hotline,” Ezra continued in the August ruling. “The implication, when viewers see the notice, is that consumption of pornography (or any sexual material) is so associated with mental illness that those viewing it should consider seeking professional crisis help. The statement itself is not factual, and it necessarily places a severe stigma on both the websites and its visitors.”

The judge went on to indicate that health disclosures and labeling required by the bill are not accepted by scientific and medical communities. These disclosures include labels that feature the supposed endorsement of the Texas Health and Human Services Commission recognizing pornography as addictive or being linked to unlawful activities that are unrelated to lawful industry participation. The American Psychological Association doesn’t recognize pornography addiction as a mental disorder found in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Most psychologists and sociologists say porn “addiction” is heavily tied to hyper-religious environments and ideological beliefs.

Gustavo Turner of Xbiz.com confirmed with the Texas Health and Human Services Commission that the disclosures aren’t based on any input from their experts. This was confirmed to myself at AVN, Sam Cole of 404 Media, and many other journalists. It is worth noting that SAMHSA also doesn’t offer a clear definition of “porn addiction.” Judge Ezra even said that adding the age verification element with health disclosures and labels ostensibly targeting Texas minors who somehow bypass an age-gate without a VPN ultimately defeats the purpose. Adults will only see the warnings and that is also problematic. The First Amendment violations are quite clear.

Paxton knows all of this. But, his announcement to sue Aylo is based solely on ideology. According to the filing submitted to a Travis County court, Paxton believes he can hold Aylo accountable to pay up to about 3.2million(3.2 million (3.2million(1.6 million plus 10,000perdayofviolationsor10,000 per day of violations or 10,000perdayofviolationsor250,000 per day a minor is exposed to age-restricted material), maybe more, by starting the violation period right after the ink dried on the Fifth Circuit order allowing HB 1181 to enter into force.

It’s worth remembering that litigation in the federal case between the porn industry and Paxton is still ongoing. A pragmatic judge would order the attorneys representing Paxton’s office and counsel defending the Canadian porn giant to hold off until a federal district court rules on the ongoing viability of House Bill 1181.

But this seems unlikely to happen. It is Texas. And, one would think that an embattled attorney general facing securities fraud indictments and a trial on April 15 would address his personal matters before making a new attempt to infringe upon our basic civil liberties.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Filed Under: 1st amendment, adult content, age verification, hb 1181, ken paxton, texas
Companies: aylo, mindgeek, pornhub