hb 1181 – Techdirt (original) (raw)
SCOTUS Needs To Take Up The Texas Age Verification Lawsuit
from the no-brainer dept
I think we could witness one of the most important First Amendment legal showdowns ever.
The U.S. Supreme Court is being asked to rule on the constitutionality of mandatory age verification for porn websites. If the high court takes up the case, it would queue up a landmark debate pertaining to the First Amendment and privacy rights of millions of people.
Free Speech Coalition and the parent companies of the largest adult entertainment websites on the web filed suit in the U.S. District Court for the Western District of Texas with the intention to block House Bill (HB) 1181.
HB 1181 requires mandatory age verification for porn websites with users from Texas IP addresses. It also requires pseudoscientific health warnings to be posted on adult websites. Counsel representing the coalition and the porn companies argued that it violated the First Amendment rights of consumers and owners of the websites. This prompted the federal district court to initially enjoin the state of Texas from enforcing the law because its text appeared to be unconstitutional.
Acting Texas Attorney General Angela Colmenero appealed the injunction to the Fifth Circuit Court of Appeals. After a clear demonstration of classic Fifth Circuit tap dancing and the return of Ken Paxton to helm of the Attorney General’s office, Texas was granted permission to enforce the age verification requirements outlined in the law. Luckily, the circuit judges properly applied the Zauderer standard, denying the requirement to post the bogus health warnings.
Soon after this, Paxton announced lawsuits against the parent companies of Pornhub, xHamster, and Stripchat for violations of HB 1181. The penalties total in millions of dollars in damages, per the law. After the lawsuits for HB 1181 violations were announced and filed in circuit courts in Travis County, counsel for the plaintiffs tried to hold enforcement while they petitioned the high court to take up the case for consideration. Justice Samuel Alito, the circuit justice for the Fifth Circuit, has yet to indicate that the case will be taken up by the Supreme Court. There is no reason why they shouldn’t take it up because of how important this case is moving forward, and how this issue is showing up in so many other states.
The case, Free Speech Coalition et al. v. Paxton, is so important that the national affiliate of the American Civil Liberties Union announced they are aiding the plaintiffs and their current counsel, a team from the big law firm Quinn Emanuel, in their case. They will support the petition for writ of certiorari, potential oral arguments, etc. to render House Bill 1181 and all age verification laws as unconstitutional pipedreams.
Plaintiffs accurately argue that this is settled law, referring to the high court’s landmark decision in Reno v. American Civil Liberties Union. This decision found that segregating the content of the internet by age violates the rights of not only adults but for minors. The vast majority of age verification laws as they are structured now do just that.
While the Supreme Court provided for a less restrictive means to filter out minors from viewing age-restricted materials and potentially facing some level of harm, the vehicles of enforcement and some of the options touted in these bills for controlling minors’ web usage are, to the plaintiffs and civil liberties organizations, a violation of the First Amendment. ACLU and Quinn Emanuel attorneys for the plaintiffs present these arguments in their petition for writ of certiorari, which was filed in April 2024. Now, we just need the Supreme Court to take this seriously and not let the Fifth Circuit, the circuit that upheld a ban on drag shows, dictate law for the nation.
Michael McGrady covers the legal and tech side of the online porn business, among other topics.
Filed Under: 1st amendment, age verification, hb 1181, ken paxton, samuel alito, supreme court, texas
Companies: aclu, free speech coalition
Ken Paxton Sues Pornhub’s Parent Company Aylo For Alleged Violations Of Texas Anti-Porn Law
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
A Reagan Judge, The First Amendment, And The Eternal War Against Pornography
from the age-verification-and-free-speech dept
Using “Protect the children!” as their rallying cry, red states are enacting digital pornography restrictions. Texas’s effort, H.B. 1181, requires commercial pornographic websites—and others, as we’ll see shortly—to verify that their users are adults, and to display state-drafted warnings about pornography’s alleged health dangers. In late August, a federal district judge blocked the law from taking effect. The U.S. Court of Appeals for the Fifth Circuit expedited Texas’s appeal, and it just held oral argument. This law, or one of the others like it, seems destined for the Supreme Court.
So continues what the Washington Post, in the headline of a 1989 op-ed by the columnist Nat Henthoff, once called “the eternal war against pornography.”
It’s true that the First Amendment does not protect obscenity—which the Supreme Court defines as “prurient” and “patently offensive” material devoid of “serious literary, artistic, political, or scientific value.” Like many past anti-porn crusaders, however, Texas’s legislators blew past those confines. H.B. 1181 targets material that is obscene to minors. Because “virtually all salacious material” is “prurient, offensive, and without value” to young children, the district judge observed, H.B. 1181 covers “sex education [content] for high school seniors,” “prurient R-rated movies,” and much else besides. Texas’s attorneys claim that the state is going after “teen bondage gangbang” films, but the law they’re defending sweeps in paintings like Manet’s Olympia (1863):
Incidentally, this portrait appears—along with other nudes—in a recent Supreme Court opinion. And now, of course, it appears on this website. Time to verify users’ ages (with government IDs or face scans) and post the state’s ridiculous “warnings”? Not quite: the site does not satisfy H.B. 1181’s “one-third . . . sexual material” content threshold. Still, that standard is vague. (What about a website that displays a collection of such paintings?) And in any event, that this webpage is not now governed by H.B. 1181 only confirms the law’s arbitrary scope.
H.B. 1181 flouts Supreme Court decisions on obscenity, internet freedom, and online age verification. This fact was not lost on the district judge, who noted that Texas had raised several of its arguments “largely for the purposes” of setting up “Supreme Court review.” If this case reaches it, the Supreme Court can strike down H.B. 1181 simply by faithfully applying any or all of several precedents.
But the Court should go further, by elaborating on the threat these badly crafted laws pose to free expression.
When it next considers an anti-porn law, the Court will hear a lot about its own rulings. But other opinions grapple with such laws—and one of them, in particular, is worth remembering. Authored by Frank Easterbrook, perhaps the greatest jurist appointed by Ronald Reagan, American Booksellers Association v. Hudnut (7th Cir. 1985) addresses pornography and the First Amendment head on.
At issue was an Indianapolis ordinance that banned the “graphic sexually explicit subordination of women.” Interestingly, this law was inspired by two intellectuals of the left, Catharine MacKinnon and Andrea Dworkin. They maintained (as Easterbrook put it) that “pornography influences attitudes”—that “depictions of subordination tend to perpetuate subordination,” including “affront and lower pay at work, insult and injury at home, battery and rape on the streets.” (You can hear, in today’s debates about kids and social media, echoes of this dire rhetoric.)
Although he quibbled with the empirical studies behind this claim, Easterbrook accepted the premise for the sake of argument. Indeed, he leaned into it. For him, the harms the city alleged “simply demonstrate[d] the power of pornography as speech.” That pornography affects attitudes, which in turn affect conduct, does not distinguish it from other forms of expression. Hitler’s speeches polluted minds and inspired horrific actions. Religions deeply shape people’s lifestyles and worldviews. Television leads (many worry) “to intellectual laziness, to a penchant for violence, to many other ills.” The strong effects of speech are an inherent part of speech—not a ground for regulation. “Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.”
Like Texas today, Indianapolis targeted not obscenity alone, but adult content more broadly. And like Texas, the city sought to excuse this move by blending the two concepts together. Pornography is “low value” speech, it argued, akin to obscenity and therefore open to special restriction. There were several problems with this claim. But as Easterbrook explained, it also failed on its own terms. Indianapolis asserted that pornography shapes attitudes in the home and at the workplace. It believed, in other words, that the speech at issue influenced politics and society “on a grand scale.” True, Easterbrook acknowledged, “pornography and obscenity have sex in common.” Like Texas today, though, Indianapolis failed to carve out of its ordinance material with literary, artistic, political, or scientific value to adults.
“Exposure to sex is not,” Easterbrook declared, “something the government may prevent.” This is not an exceptional conclusion. “Much speech is dangerous.” Under the First Amendment, however, “the government must leave to the people the evaluation of ideas.” Otherwise free speech dies. Almost everyone would, if operating in a vacuum, happily outlaw certain kinds of noxious speech. Some would bar racial slurs (or disrespect), others religious fundamentalism (or atheism). Some would banish political radicalism (of some stripe or other), others misinformation (defined one way or another). Many of the lawmakers who claim merely to hate porn would, if given the chance, eagerly police all erotic film, literature, and art. (Another pathbreaking Manet painting, Luncheon on the Grass, would plainly have fallen afoul of the Indianapolis ordinance.) The First Amendment stops this downward spiral before it begins. It “removes the government from the role of censor.”
Indianapolis “paint[ed] pornography as part of the culture of power.” Maybe so. But in the end, Easterbrook responded, the First Amendment is a tool of the powerless:
Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. . . . Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.
Earlier this year, the Supreme Court’s conservative justices sang a similar tune. It is “not the role of the State or its officials,” they declared in 303 Creative v. Elenis, “to prescribe what shall be offensive.” On the contrary, the Constitution “protect[s] the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.” Here’s hoping that, when they’re dragged back into the eternal war against pornography, those justices give these words their proper sweep.
Corbin K. Barthold is internet policy counsel at TechFreedom.
Filed Under: 1st amendment, 5th circuit, adult content, age verification, frank easterbrook, free speech, hb 1181, pornography, texas
Last Week 5th Circuit Said Gov’t Can’t Pressure Websites, This Week It Says Gov’t Mandated ‘Health’ Messages Are Perfectly Fine
from the when-republicans-do-it,-it's-fine dept
It can always get dumber. And when we’re talking about the 5th Circuit, you have to assume it will always get dumber. And that’s what has happened now with the 5th Circuit issuing a stay on an injunction that had blocked an obviously unconstitutional law. But we’ll get to those details in a moment.
Just last week we wrote about the decision in the 5th Circuit saying that the government cannot coerce websites regarding how they moderate content. We noted that this seemed to be in near total conflict with last year’s 5th Circuit ruling saying that of course governments can tell websites how to moderate (the only point on which they are consistent is that “it’s okay when Republicans do it, and not okay when Democrats do it”).
But that ruling last year was even crazier than it sounds. As you may recall, Texas passed this law, HB 20, that told social media websites how they had to moderate (or not moderate) certain content. A federal district court issued an injunction blocking the law, laying out in great detail how very, very, very obviously unconstitutional the whole thing was. It appeared that the judge in that case knew full well that the 5th Circuit was likely to muck it up and was trying to convince them not to.
Somewhat incredibly, the 5th Circuit mucked it up in spectacular fashion, overturning the injunction and reinstating the law immediately with zero explanation. Normally, when you issue a ruling stopping an injunction (or issuing one) you… explain why. But the three judge panel just issued a one-line ruling saying that the motion was granted. No explanation. This resulted in a mad dash to the Supreme Court which (perhaps surprisingly!) told the 5th Circuit that this was procedurally inane, and put the law back on hold.
Eventually, many, many, many months later, the 5th Circuit explained its reasoning in an opinion authored by Judge Andy Oldham, reinstating the law again (which was then put on hold while it was appealed to the Supreme Court, where we’re still waiting to see what happens). Oldham’s reasoning basically overturned a century’s worth of “settled” 1st Amendment law.
So, anyway, that’s the history from last year. Onto this year. Earlier this year, Texas passed a law requiring both age verification and a mandatory “health warning” message on all adult content websites. The Free Speech Coalition sued to stop the law going into effect (as it was scheduled to do on September 1st) and, as we reported, the court reasonably granted the injunction blocking the law, noting that it was pretty clearly a violation of the 1st Amendment for both the age verification bits and for the mandatory health warning, which forces adult websites to say that “Texas Health and Human Services” has claimed that pornography leads to eating disorders, impaired brain development and an increase in demand for child exploitation even though, as the judge blocking the law noted, Texas Health and Human Service’s department never found any such thing.
As the court clearly notes “this is compelled speech.”
Anyway, with the court rejecting it, we figured there would be some time for it to go through the usual appeals process.
But we did not count on good ol’ 5th Circuit Judge Andy Oldham. Because a three judge panel that includes Oldham reinstated the law, putting an “administrative stay” on the preliminary injunction that blocked the law in the first place. Once again, the ruling gives no details at all. It’s two sentences this time (up from one the last time), and just effectively removes the preliminary injunction, meaning that the law is immediately in effect. The only difference from last year’s similar nonsense is that the court says the appeal is “expedited” to the next available oral argument panel.
5th Circuit lawyer Raffi Melkonian wrote on Bluesky that there’s some procedural weirdness to all this, noting the 5th Circuit will often issue an administrative stay while considering a motion for a stay, but here it’s not even yet considering the actual stay because it’s saying that it will deal with it during oral arguments.
Either way, the law is now in effect and we have no idea what that means because the 5th Circuit has explained nothing.
And, again, between these two 5th Circuit rulings, a week and a half apart, we are being told by the very same court that governments cannot do anything to coerce speech on some platforms, but absolutely can compel speech on other platforms.
If that seems contradictory, the reality is that what the 5th Circuit is saying, in a truly partisan way, is that when Republicans compel speech, that’s fine. It’s not only fine, but the court doesn’t even need to explain why it passes constitutional muster. When Democrats highlight content that could lead to harm for websites to look at and decide for themselves if they want to host it, that is the worst censorship scandal in the history of America, and the government should be barred from speaking to the companies at all.
The 5th Circuit is a joke, and its main court jester seems to be Andy Oldham.
There is no workable theory of the 1st Amendment here. There is nothing but a distorted partisan filter.
Filed Under: 1st amendment, 5th circuit, age verification, andrew oldham, andy oldham, compelled speech, free speech, hb 1181, texas
Companies: free speech coalition
Texas Ruling Shows You Can’t Regulate Online Pornography Like A Public Health Crisis
from the your-porn-addiction-isn't-real dept
A Texas federal district judge granted a preliminary injunction blocking the enforcement of a controversial age verification law set to enter force September 1.
The court determined that House Bill (HB) 1181 was overly broad, even in the narrowest interpretations, and violated the First Amendment and Section 230 of the Communications Decency Act of 1996. No brainer, as Mike described earlier today.
But what made HB 1181 alarming to adult industry firms and digital rights activists is how the sponsors of the legislation, religious Texas state lawmakers, tried to impose pseudoscientific claims of porn addiction into statute. At length, Senior U.S. District Judge David Alan Ezra outlined that the requirement of labeling porn sites with public health warnings in a fashion similar to how other federal and state laws require sites advertising alcoholic beverages and tobacco products doesn’t match the intent of protecting minors or the science.
Some of you reading this will likely be enraged by this, but pornography consumption in the United States isn’t a public health crisis. Your porn addiction is not real. I make this statement because major medical groups and public health agencies the world over find little to no evidence of online sexual content being addictive.
This isn’t to say that individuals who might struggle with pornography consumption aren’t experiencing a degree of distress. Too much of anything can be damaging for some, but these tendencies are more related to compulsive behavior and a lack of regulation of that behavior. And there is a fine line between addiction and compulsion that can easily be checked by the proper interventions. But to say that you are a porn addict or that pornography is a public health crisis in the same context as, say, obesity or drunk driving among minors is a misinformed assessment that derives from social settings, your political views, the role of religion in your life, and how you perceive the role of sexuality in the culture. Studies overwhelmingly dispel claims of the porn addiction hypothesis attributing the fact that the people who predominantly report this are subject to hyper-religious environments that feature patriarchal structures that demonize consensual sexual expression outside of procreational purposes. Anything outside of this is regarded as sinful and demonic to them.
Clearly this is my own annotation of the ruling, but Judge Ezra recognizes the lack of scientific and medical consensus on the claims drafted in the law.
House Bill 1181, in addition to requiring age assurance measures, requires adult entertainment sites such as Pornhub or xHamster to publish warnings ostensibly to warn minors of the supposed harms of pornography. A selection of these warnings feature the endorsement of the Texas Health and Human Services Commission.
“Although these warnings carry the label ‘Texas Health and Human Services,’ it appears that the Texas of Health and Human Services Commission has not made these findings or announcements,” writes Judge Ezra.
As already stated above, none of the major medical associations recognize any perceived public health harms from pornography. This goes toward additional sentiment that Ezra highlights, which include the fact that compelling a private enterprise to post government scripted communication that is unfounded and disputed is far-reaching. Ezra indicates that “the relaxed standard for certain compelled disclosures applies if they contain ‘purely factual and uncontroversial information.'” Or, in other words, the judge cites Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio and the ‘Zauderer standard’ that was discussed on a Techdirt podcast last year.
The Zauderer standard allows governments to compel certain commercial speech situationally without any violation of the advertiser’s First Amendment rights. Think of the compelled commercial speech tobacco product manufacturers have to place on their packs of cigarettes. Messaging is clear that smoking could kill people and is the leading cause of preventable death in the United States. “It is unreasonable to warn adults about the dangers of legal pornography in order to protect minors. But even assuming this was a cognizable interest, Zauderer would still not apply,” the judge stated. He added that the requirement set out for the typeface and font size was burdensome, in addition to requiring messaging for a mental health helpline.
“It does not assert a fact, and instead requires companies to post the number of a mental health hotline,” continues Ezra. “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.”
This speaks volumes. The ideological underpinnings of the law are clear and show very little basis in fact.
Per the judge’s sentiments, such an attempt at compelling commercial speech for the supposed benefit of the general public is total bullshit. And, he recognizes that the health disclosure requirement frames information that is “factually disputed.” “Plaintiffs introduce substantial evidence showing that Texas’s health disclosures are either inaccurate or contested by existing medical research,” Ezra concludes.
Considering this information, it’s even clearer that you cannot regulate online pornography, or any type of protected form of expression, through the guise of public health and safety. This is simply a vehicle for moralistic paternalists looking to restrict and even censor forms of speech that they disfavor.
That’s not how this works, Texas.
Michael McGrady is the contributing editor at AVN.com.
Filed Under: 1st amendment, age verification, compelled speech, disclosures, hb 1181, texas, transparency, zauderer
Companies: free speech coalition
Court Says Texas’ Adult Content Age Verification Law Clearly Violates The 1st Amendment
from the 1st-amendment-wins-again dept
One down, many more to go.
We’ve been talking a lot by the rush of states to push for age verification laws all over the world, despite basically every expert noting that age verification technology is inherently a problem for privacy and security, and the laws mandating it are terrible. So far, it seems that only the Australian government has decided to buck the trend and push back on implementing such laws. But, much of the rest of the world is moving forward with them, while a bunch of censorial prudes cheer these laws on despite the many concerns about them.
The Free Speech Coalition, the trade group representing the adult content industry, has sued to block the age verification laws in the US that specifically target their websites. We reported on how their case in Utah was dismissed on procedural grounds, because that law is a bounty-type law with a private right of action, so there was no one in the government that could be sued. However, the similar law in Texas did not include that setup (even as Texas really popularized that method with its anti-abortion law). The Free Speech Coalition sued over the law to block it from going into effect.
Judge David Alan Ezra (who is technically a federal judge in Hawaii, but is hearing Texas cases because the Texas courts are overwhelmed) has issued a pretty sweeping smackdown of these kinds of laws, noting that they violate the 1st Amendment and that they’re barred by Section 230.
Given the rushed nature of the proceedings (the case was filed a few weeks ago, and the judge needed to decide before the law was scheduled to go into effect on Friday), it’s impressive that the ruling is 81 pages of detailed analysis. We’ll have a separate post soon regarding the judge’s discussion on the “health warnings” part of the opinion, but I wanted to cover the rest of the legal analysis, mostly regarding the 1st Amendment and Section 230.
However, it is worth mentioning Texas’ ridiculous argument that there was no standing for the Free Speech Coalition in this case. They tried to argue that there was no standing because FSC didn’t name a particular association member impacted by the law, but we’ve been over this in other cases in which trade associations (see: NetChoice and CCIA) are able to bring challenges on behalf of their member companies. The more bizarre standing challenge was that some of the websites that are members of the Free Speech Coalition are not American companies.
But, the judge notes (1) many of the members are US companies and (2) even the non-US companies are seeking to distribute content in the US, where the 1st Amendment still protects them:
Defendant repeatedly emphasizes that the foreign website Plaintiffs “have no valid constitutional claims” because they reside outside the United States. (Def.’s Resp., Dkt. # 27, at 6–7). First, it is worth noting that this argument, even if successful, would not bar the remaining Plaintiffs within the United States from bringing their claims. Several website companies, including Midus Holdings, Inc., Neptune Media, LLC, and Paper Street Media, LLC, along with Jane Doe and Free Speech Coalition (with U.S. member Paper Street Media, LLC), are United States residents. Defendant, of course, does not contest that these websites and Doe are entitled to assert rights under the U.S. Constitution. Regardless of the foreign websites, the domestic Plaintiffs have standing.
As to the foreign websites, Defendant cites Agency for Intl. Dev. v. All. for Open Socy. Intl., Inc., 140 S. Ct. 2082 (2020) (“AOSI”), which reaffirmed the principle that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.” Id. at 2086. AOSI’s denial of standing is distinguishable from the instant case. That case involved foreign nongovernmental organizations (“NGOs”) that received aid—outside the United States—to distribute outside the United States. These NGOs operated abroad and challenged USAID’s ability to condition aid based on whether an NGO had a policy against prostitution and sex trafficking. The foreign NGOs had no domestic operations and did not plan to convey their relevant speech into the United States. Under these circumstances, the Supreme Court held that the foreign NGOs could not claim First Amendment protection. Id.
AOSI differs from the instant litigation in two critical ways. First, Plaintiffs do not seek to challenge rule or policymaking with extraterritorial effect, as the foreign plaintiffs did in AOSI. By contrast, the foreign Plaintiffs here seek to exercise their First Amendment rights only as applied to their conduct inside the United States and as a preemptive defense to civil prosecution. Indeed, courts have typically awarded First Amendment protections to foreign companies with operations in the United States with little thought. See, e.g., Manzari v. Associated Newspapers Ltd., 830 F.3d 881 (9th Cir. 2016) (in a case against British newspaper, noting that defamation claims “are significantly cabined by the First Amendment”); Mireskandari v. Daily Mail and Gen. Tr. PLC, CV1202943MMMSSX, 2013 WL 12114762 (C.D. Cal. Oct. 8, 2013) (explicitly noting that the First Amendment applied to foreign news organization); Times Newspapers Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189, 192 (C.D. Cal. 1974) (same); Goldfarb v. Channel One Russia, 18 CIV. 8128 (JPC), 2023 WL 2586142 (S.D.N.Y. Mar. 21, 2023) (applying First Amendment limits on defamation to Russian television broadcast in United States); Nygård, Inc. v. UusiKerttula, 159 Cal. App. 4th 1027, 1042 (2008) (granting First Amendment protections to Finnish magazine); United States v. James, 663 F. Supp. 2d 1018, 1020 (W.D. Wash. 2009) (granting foreign media access to court documents under the First Amendment). It would make little sense to allow Plaintiffs to exercise First Amendment rights as a defense in litigation but deny them the ability to raise a pre-enforcement challenge to imminent civil liability on the same grounds.
Moving on. The judge does a fantastic job detailing how Texas’ age verification law is barred by the 1st Amendment. First, the decision notes that the law is subject to strict scrutiny, the highest level of scrutiny in 1st Amendment cases. As the court rightly notes, in the landmark Reno v. ACLU case (the case that found everything except Section 230 of the Communications Decency Act unconstitutional), the Supreme Court said governments can’t just scream “for the children” and use that as a shield against 1st Amendment strict scrutiny:
However, beginning in the 1990s, use of the “for minors” language came under more skepticism as applied to internet regulations. In Reno v. ACLU, the Supreme Court held parts of the CDA unconstitutional under strict scrutiny. 521 U.S. 844, 850 (1997). The Court noted that the CDA was a content-based regulation that extended far beyond obscene materials and into First Amendment protected speech, especially because the statute contained no exemption for socially important materials for minors. Id. at 865. The Court noted that accessing sexual content online requires “affirmative steps” and “some sophistication,” noting that the internet was a unique medium of communication, different from both television broadcast and physical sales.
It also points to ACLU vs. Ashcroft, which found the Child Online Protection Act unconstitutional on similar grounds, and notes that Texas’ law is pretty similar to COPA.
Just like COPA, H.B. 1181 regulates beyond obscene materials. As a result, the regulation is based on whether content contains sexual material. Because the law restricts access to speech based on the material’s content, it is subject to strict scrutiny
Texas also tried to argue that there should be no 1st Amendment protections for adult content because it’s “obscene.” But the judge noted that’s not at all how the system works:
In a similar vein, Defendant argues that Plaintiffs’ content is “obscene” and therefore undeserving of First Amendment coverage. (Id. at 6). Again, this is precedent that the Supreme Court may opt to revisit, but we are bound by the current Miller framework. Miller v. California, 413 U.S. 15, 24 (1973). 3 Moreover, even if we were to abandon Miller, the law would still cover First Amendmentprotected speech. H.B. 1181 does not regulate obscene content, it regulates all content that is prurient, offensive, and without value to minors. Because most sexual content is offensive to young minors, the law covers virtually all salacious material. This includes sexual, but non-pornographic, content posted or created by Plaintiffs. See (Craveiro-Romão Decl., Dkt. # 28-6, at 2; Seifert Decl., Dkt. # 28-7, at 2; Andreou Decl., Dkt. # 28-8, at 2). And it includes Plaintiffs’ content that is sexually explicit and arousing, but that a jury would not consider “patently offensive” to adults, using community standards and in the context of online webpages. (Id.); see also United States v. Williams, 553 U.S. 285, 288 (2008); Ashcroft v. Free Speech Coal., 535 U.S. 234, 252 (2002). Unlike Ginsberg, the regulation applies regardless of whether the content is being knowingly distributed to minors. 390 U.S. at 639. Even if the Court accepted that many of Plaintiffs’ videos are obscene to adults—a question of fact typically reserved for juries—the law would still regulate the substantial portion of Plaintiffs’ content that is not “patently offensive” to adults. Because H.B. 1181 targets protected speech, Plaintiffs can challenge its discrimination against sexual material.
And under strict scrutiny, the law… fails. Badly. The key part of strict scrutiny is whether or not the law is tailored specifically to address a compelling state interest, and not go beyond that. While the court says that protecting children is a compelling state interest, the law is not even remotely narrowly tailored to that interest:
Although the state defends H.B. 1181 as protecting minors, it is not tailored to this purpose. Rather, the law is severely underinclusive. When a statute is dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint discrimination under false auspices, or at a minimum simply does not serve its purported purpose….
H.B. 1181 will regulate adult video companies that post sexual material to their website. But it will do little else to prevent children from accessing pornography. Search engines, for example, do not need to implement age verification, even when they are aware that someone is using their services to view pornography. H.B. 1181 § 129B.005(b). Defendant argues that the Act still protects children because they will be directed to links that require age verification. (Def.’s Resp., Dkt. # 27, at 12). This argument ignores visual search, much of which is sexually explicit or pornographic, and can be extracted from Plaintiffs’ websites regardless of age verification. (Sonnier Decl., Dkt. # 31-1, at 1–2). Defendant’s own expert suggests that exposure to online pornography often begins with “misspelled searches[.]”…
So, the law doesn’t stop most access to adult content. The judge highlights that, by the state’s own argument, it doesn’t apply to foreign websites, which host a ton of adult content. And it also doesn’t apply to social media, since most of their content is not adult content.
In addition, social media companies are de facto exempted, because they likely do not distribute at least one-third sexual material. This means that certain social media sites, such as Reddit, can maintain entire communities and forums (i.e., subreddits), dedicated to posting online pornography with no regulation under H.B. 1181. (Sonnier Decl., Dkt. # 31-1, at 5). The same is true for blogs posted to Tumblr, including subdomains that only display sexually explicit content. (Id.) Likewise, Instagram and Facebook pages can show material which is sexually explicit for minors without compelled age verification. (Cole Decl., Dkt. # 5-1, at 37–40). The problem, in short, is that the law targets websites as a whole, rather than at the level of the individual page or subdomain. The result is that the law will likely have a greatly diminished effect because it fails to reduce the online pornography that is most readily available to minors.
In short, if the argument is that we need to stop kids from seeing pornography, the law should target pornography, rather than a few sites which focus on pornography.
Also, the law is hella vague, in part because it does not consider that 17-year-olds are kinda different from 5-year-olds.
The statute’s tailoring is also problematic because of several key ambiguities in H.B. 1181’s language. Although the Court declines to rest its holding on a vagueness challenge, those vagueness issues still speak to the statute’s broad tailoring. First, the law is problematic because it refers to “minors” as a broad category, but material that is patently offensive to young minors is not necessarily offensive to 17-year-olds. As previously stated, H.B. 1181 lifts its language from the Supreme Court’s holdings in Ginsberg and Miller, which remains the test for obscenity. H.B. 1181 § 129B.001; Miller, 413 U.S. at 24; Ginsberg, 390 U.S. at 633. As the Third Circuit held, “The type of material that might be considered harmful to a younger minor is vastly different—and encompasses a much greater universe of speech—than material that is harmful to a minor just shy of seventeen years old. . . .” ACLU v. Ashcroft, 322 F.3d at 268. 7 H.B. 1181 provides no guidance as to what age group should be considered for “patently offensive” material. Nor does the statute define when material may have educational, cultural, or scientific value “for minors,” which will likewise vary greatly between 5-yearolds and 17-year-olds.
And even the “age verification” requirements are vague because it’s not clear what counts.
Third, H.B. 1181 similarly fails to define proper age verification with sufficient meaning. The law requires sites to use “any commercially reasonable method that relies on public or private transactional data” but fails to define what “commercially reasonable” means. Id. § 129B.03(b)(2)(B). “Digital verification” is defined as “information stored on a digital network that may be accessed by a commercial entity and that serves as proof of the identify of an individual.” Id. § 129B.003(a). As Plaintiffs argue, this definition is circular. In effect, the law defines “identity verification” as information that can verify an identity. Likewise, the law requires “14-point font,” but text size on webpages is typically measured by pixels, not points. See Erik D. Kennedy, The Responsive Website Font Size Guidelines, Learn UI Design Blog (Aug. 7, 2021) (describing font sizes by pixels) (Dkt. # 5-1 at 52–58). Overall, because the Court finds the law unconstitutional on other grounds, it does not reach a determination on the vagueness question. But the failure to define key terms in a comprehensible way in the digital age speaks to the lack of care to ensure that this law is narrowly tailored. See Reno, 521 U.S. at 870 (“Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment.”).
So the law is underinclusive and vague. But it’s also overinclusive by covering way more than is acceptable under the 1st Amendment.
Even if the Court were to adopt narrow constructions of the statute, it would overburden the protected speech of both sexual websites and their visitors. Indeed, Courts have routinely struck down restrictions on sexual content as improperly tailored when they impermissibly restrict adult’s access to sexual materials in the name of protecting minors.
The judge notes (incredibly!) that parts of HB 1181 are so close to COPA (the law the Supreme Court found unconstitutional in the ACLU v. Ashcroft case) that he seems almost surprised Texas even bothered.
The statutes are identical, save for Texas’s inclusion of specific sexual offenses. Unsurprisingly, then, H.B. 1181 runs into the same narrow tailoring and overbreadth issues as COPA….
[….]
Despite this decades-long precedent, Texas includes the exact same drafting language previously held unconstitutional.
Nice job, Texas legislature.
The court also recognizes the chilling effects of age verification laws, highlighting how, despite the ruling in Lawrence v. Texas saying anti-gay laws were unconstitutional, Texas has still kept the law in question on the books.
Privacy is an especially important concern under H.B. 1181, because the government is not required to delete data regarding access, and one of the two permissible mechanisms of age-verification is through government ID. People will be particularly concerned about accessing controversial speech when the state government can log and track that access. By verifying information through government identification, the law will allow the government to peer into the most intimate and personal aspects of people’s lives. It runs the risk that the state can monitor when an adult views sexually explicit materials and what kind of websites they visit. In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech. Such restrictions have a substantial chilling effect. See Denver Area Educ. Telecomm. Consortium, Inc., 518 U.S. at 754 (“[T]he written notice requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the patently offensive channel.”).
The deterrence is particularly acute because access to sexual material can reveal intimate desires and preferences. No more than two decades ago, Texas sought to criminalize two men seeking to have sex in the privacy of a bedroom. Lawrence v. Texas, 539 U.S. 558 (2003). To this date, Texas has not repealed its law criminalizing sodomy. Given Texas’s ongoing criminalization of homosexual intercourse, it is apparent that people who wish to view homosexual material will be profoundly chilled from doing so if they must first affirmatively identify themselves to the state.
Texas argued that the age verification data will be deleted, but that doesn’t cut it, which is an important point in many other states passing similar laws:
Defendant contests this, arguing that the chilling effect will be limited by age verification’s ease and deletion of information. This argument, however, assumes that consumers will (1) know that their data is required to be deleted and (2) trust that companies will actually delete it. Both premises are dubious, and so the speech will be chilled whether or not the deletion occurs. In short, it is the deterrence that creates the injury, not the actual retention. Moreover, while the commercial entities (e.g., Plaintiffs) are required to delete the data, that is not true for the data in transmission. In short, any intermediary between the commercial websites and the third-party verifiers will not be required to delete the identifying data.
The judge also notes that leaks and data breaches are a real risk, even if the law requires deletion of data! And that the mere risk of such a leak is a speech deterrent.
Even beyond the capacity for state monitoring, the First Amendment injury is exacerbated by the risk of inadvertent disclosures, leaks, or hacks. Indeed, the State of Louisiana passed a highly similar bill to H.B. 1181 shortly before a vendor for its Office of Motor Vehicles was breached by a cyberattack. In a related challenge to a similar law, Louisiana argues that age-verification users were not identified, but this misses the point. See Free Speech Coalition v. Leblanc, No. 2:23-cv-2123 (E.D. La. filed June 20, 2023) (Defs.’ Resp., Dkt. # 18, at 10). The First Amendment injury does not just occur if the Texas or Louisiana DMV (or a third-party site) is breached. Rather, the injury occurs because individuals know the information is at risk. Private information, including online sexual activity, can be particularly valuable because users may be more willing to pay to keep that information private, compared to other identifying information. (Compl. Dkt. # 1, at 17); Kim Zetter, Hackers Finally Post Stolen Ashley Madison Data, Wired, Aug. 18, 2015, https://www.wired.com/2015/08/happened-hackers-posted-stolen-ashleymadison-data (discussing Ashley Madison data breach and hackers’ threat to “release all customer records, including profiles with all the customers’ secret sexual fantasies and matching credit card transactions, real names and addresses.”). It is the threat of a leak that causes the First Amendment injury, regardless of whether a leak ends up occurring.
Hilariously, Texas’ own “expert” (who works on age verification tech and is on the committee that runs the trade association of age verification companies) basically undermined Texas’ argument:
Defendant’s own expert shows how H.B. 1181 is unreasonably intrusive in its use of age verification. Tony Allen, a digital technology expert who submitted a declaration on behalf of Defendant, suggests several ways that age-verification can be less restrictive and costly than other measures. (Allen Decl., Dkt. # 26-6). For example, he notes that age verification can be easy because websites can track if someone is already verified, so that they do not have to constantly prove verification when someone visits the page. But H.B. 1181 contains no such exception, and on its face, appears to require age verification for each visit.
Given all that, the age verification alone violates the 1st Amendment.
With that, there isn’t even a need to do a Section 230 analysis, but the court does so anyway. It doesn’t go particularly deep, other than to note that Section 230’s coverage is considered broad (even in the 5th Circuit):
Defendant seeks to differentiate MySpace because the case dealt with a negligence claim, which she characterizes as an “individualized harm.” (Def.’s Resp., Dkt. # 27, at 19). MySpace makes no such distinction. The case dealt with a claim for individualized harm but did not limit its holding to those sorts of harms. Nor does it make sense that Congress’s goal of “[paving] the way for a robust new forum for public speech” would be served by treating individual tort claims differently than state regulatory violations. Bennett v. Google, LLC, 882 F.3d 1163, 1166 (D.C. Cir. 2018) (cleaned up). The text of the CDA is clear: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). “[A]ny” state law necessarily includes those brought by state governments, so Defendant’s distinction between individual vs. regulatory claims is without merit.
The Fifth Circuit “and other circuits have consistently given [Section 230(c)] a wide scope.” Google, Inc. v. Hood, 822 F.3d 212, 220-21 (5th Cir. 2016) (quoting MySpace, 528 F.3d at 418). “The expansive scope of CDA immunity has been found to encompass state tort claims, alleged violations of state statutory law, requests for injunctive relief, and purported violations of federal statutes not specifically excepted by § 230(e).” Hinton v. Amazon.com.dedc, LLC, 72 F. Supp. 3d 685, 689 (S.D. Miss. 2014) (citing cases).
And while the court says 230 preemption might not apply to adult content websites that create and host their own content, it absolutely does apply to those that host 3rd party user-uploaded content.
Those Plaintiffs that develop and post their own content are not entitled to an injunction on Section 230 grounds. Still, other Plaintiffs, such as WebGroup, which operates XVideos, only hosts third-party content, and therefore is entitled to Section 230 protection.
Given all that it’s not difficult for the court to issue the injunction, noting that a violation of 1st Amendment rights is irreparable harm.
In short, Plaintiffs have shown that their First Amendment rights will likely be violated if the statute takes effect, and that they will suffer irreparable harm absent an injunction. Defendant suggests this injury is speculative and notimminent, (Def.’s Resp., Dkt. # 27, at 21–23), but this is doubtful. H.B. 1181 takes effect on September 1—mere days from today. That is imminent. Nor is the harm speculative. The Attorney General has not disavowed enforcement. To the contrary, her brief suggests a genuine belief that the law should be vigorously enforced because of the severe harms purportedly associated with what is legal pornography. (Id. at 1–5). It is not credible for the Attorney General to state that “[p]orn is absolutely terrible for our kids” but simultaneously claim that they will not enforce a law ostensibly aimed at preventing that very harm. Because the threat of enforcement is real and imminent, Plaintiffs’ harm is non-speculative. It is axiomatic that a plaintiff need not wait for actual prosecution to seek a preenforcement challenge. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). In short, Plaintiffs have more than met their burden of irreparable harm.
All in all this is a very good, very clear, very strong ruling, highlighting how age verification mandates for adult content violate the 1st Amendment. It’s likely Texas will appeal, and the 5th Circuit has a history of ignoring 1st Amendment precedent, but for now this is a win for free speech and against mandatory age verification.
Filed Under: 1st amendment, adult content, age verification, chilling effects, hb 1181, pornography, preemption, privacy, section 230, standing, state laws, texas
Companies: free speech coalition
Texas Sued Over Age Verification Law And Porn “Public Health Warnings”
from the fuck-you-Texas dept
The state of Texas was sued in a federal district court by the Free Speech Coalition, a trade group representing the adult entertainment industry, and a slate of other companies including subsidiaries of Canadian firm MindGeek (owner of Pornhub). Other plaintiffs include the parent companies of popular adult sites like XVideos and Bang Bros, and a “Jane Doe” representing the adult content creator community. The lawsuit is seeking to block the implementation of House Bill 1181, a measure that would implement mandatory age verification and require porn sites to plaster “public health” warnings as if users are trying to access a beer or e-cigarette website.
Not going to lie, this is embarrassing to see. I was born in the fascist shitshow called Texas.
In a statement sent to the news media a few short hours ago, Free Speech Coalition executive director Alison Boden said that they “are standing up not only for the rights of adult businesses and creators, but for the rights of adult Texans to access legal content in the privacy of their own home, without having to submit to surveillance or propaganda.” Boden is right to make this characterization about the law in question. House Bill 1181 is attempting to push a claim that pornography addiction is a public health crisis, a popular talking point among conservatives.
The science suggests otherwise. In one of my rants on House Bill 1181 from a few weeks ago, neuroscience academic Nicole Prause told me that the sentiments behind the law are based on flawed data and pseudoscientific assumptions. Porn addiction isn’t recognized by major medical associations, including the American Psychological Association (APA). The APA points out that porn addiction isn’t an “addiction” and is simply a case of compulsive behavior that is extremely treatable. The American Psychiatric Association also declared that there is little evidence to support a diagnosis of sex addiction or pornography addiction. Sex addiction isn’t named in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).
However, House Bill 1181 requires adult websites to publish warnings from the Texas Health & Human Services Commission (Texas HHS) falsely linking pornography consumption to human trafficking, child sexual abuse and exploitation, and an array of mental health disorders. Additionally, the law would require site owners to plaster the crisis hotline for the federal Substance Abuse and Mental Health Services Administration (SAMHSA) on their sites. Legal counsel for the plaintiffs points out that neither agencies offer or are equipped to handle services related to so-called porn addiction.
“There is no indication that anyone calling this helpline looking for information about any effects of pornography will receive it there,” reads the complaint, referencing SAMHSA’s website. Also, it requires age verification for users looking to access adult content. These provisions are also products of the trend of state-level legislation adopted by Republican-controlled legislatures who assert that age verification mandates are critical to blocking access to age-restricted content from minors. Case law begs to differ. Age verification and restricting minors are simply the paint on the crumbling facade. Age verification is textbook censorship and surveillance. Requiring adults to submit their government identifications, credit card numbers, or other personal info is a real turn-off. It’s also potentially unconstitutional and risks data bloat, information assurance and security, and could be used as an intervention to censor protected forms of online expression.
The Free Speech Coalition filed lawsuits against the governments of Utah and Louisiana, too. But, a federal district judge in Utah just dismissed the lawsuit there because the age verification law is considered a “bounty” law, per the recent words of the illustrious dear leader of Techdirt. A bounty law essentially allows private citizens to enforce the age verification measure through litigation. Due to this, the judge ruled that the coalition has no grounds to sue state officials, such as the attorney general, because they’re not the ones who are attempting to enforce the requirements for age verification. The law grants citizens the right to sue and offers the suing citizens a reward, of sorts, if the suit is successful. Take ADA trolls, for example. “Even when the underlying laws may sound sensible, giving anyone who takes anyone else to court the ability to profit from it leads to widespread abuse,” Masnick explained.
Another well publicized example of a bounty law can also be found in, you guessed it, Texas! Texas Monthly published a column by contributor Dan Solomon about the abortion ban implemented by the state legislature through Senate Bill 8 in 2021. Senate Bill 8 allows anyone who is aware of an abortion occurring in the state to sue anyone who “aids or abets” said procedure. One Dr. Alan Braid was sued in a San Antonio state court but the lawsuit against the doctor was tossed on the grounds that the writers of the law, far-right Texas Republicans, could attack freedoms by way of an invasive civil proceeding. This sort of bounty law didn’t hold up. The age verification case in Utah is likely to be appealed but there needs to be an attempt by a private citizen to enforce the action against a company like MindGeek or something like that.
The Texas age verification law, however, empowers the attorney general to enforce such a measure through civil penalties. This gives impeached Texas Attorney General Ken Paxton and his office the ability to sue companies that refuse to comply with the built-in idiocy behind something as overreaching as House Bill 1181 and means that Texas won’t be able to dodge this lawsuit in the same manner as Utah.
Grab your popcorn because this lawsuit is also a harbinger of what is about to come (no pun intended). Pornhub’s portfolio of websites has geo-blocked IP addresses in Utah, Arkansas, Mississippi, and Virginia. They adopted the LA Wallet verification method in Louisiana but they ended up losing over 80 percent of their local traffic. Despite my contacts at Montréal-based MindGeek and the company’s ownership group, Ethical Capital Partners in Ottawa, declining to comment on a geo-block on a state with a population greater than all of Ontario, Quebec, and British Columbia combined, Texas is very likely to be the next U.S. state to see its access to Pornhub restricted if no injunction is granted preventing the law from going into effect. The blockbuster is definitely the lawsuit in Austin right now but when Sept. 1 comes along, if House Bill 1181 enters into force, nearly 30 million Texans will not be able to watch their favorite Pornhub scenes (without using a VPN, of course).
Michael McGrady is the contributing editor at AVN.com.
Disclosure: The author is a member of the Free Speech Coalition, He was not compensated by the coalition, its officers, or members to write this column. He’s just pissed off about HB 1181.
Filed Under: adult content, age verification, hb 1181, public health warnings, texas
Companies: free speech coalition
Texas Legislature Convinced First Amendment Simply Does Not Exist
from the it's-time-for-them-to-learn dept
Tue, Jun 20th 2023 12:06pm - Ari Cohn
Over the past two years, there has been a concerted push by state legislatures to regulate the Internet, the likes of which has not been seen since the late 90s/early aughts. Content moderation, financial relationships between journalists and platforms, social media design and transparency, “national security,” kids being exposed to “bad” Internet speech—you name it, a state legislature has introduced an unconstitutional bill about it. So it’s no surprise that the anti-porn crowd seized the moment to once again exhibit a creepy and unhealthy interest in what other people do with their pants off.
The Texas legislature, also unsurprisingly, was all too happy to help out. Last week, Texas Governor Greg Abbott signed into law HB 1181, which regulates websites that publish or distribute “material harmful to minors,” i.e., porn.
Start from the premise that pornography is protected by the First Amendment, but that it may be restricted for minors where it could not be for adults under variable obscenity jurisprudence.
The law’s requirements applies to any “commercial entity,” explicitly including social media platforms, that “intentionally publishes or distributes material on an Internet website… more than one-third of which” is porn. That’s a problematic criterion in the first place. I don’t know that there’s an easy (or even feasible) way for a social media platform to know precisely how much porn is on it (perhaps there is, though). And what about a non-social media website—what is the denominator? If a website has articles (which is definitely the reason you’re on it, I know) plus naughty pictures, is the percentage calculated by comparing the number of porn-y things to the number of articles? Words? Pages? Who knows—the law sure doesn’t say.
But that’s the least of the law’s problems. HB 1181 requires qualifying entities (however determined) to do two things, both of which clear First Amendment hurdles about as well as a rhinoceros competing in a steeplechase.
Age-Verifying Users
This has been a recurring theme in state and federal legislation recently. HB 1181 requires covered entities to “use reasonable age verification methods” to ensure that users are 18 or older before allowing access.
We’ve been here before, and explaining this over and over again is getting exhausting. But I’ll do it again, louder, for the people in the back.
Age Verification Laws: A Brief History
In the beginning (of the web) there was porn. And the Government saw that it was “icky” and said “let there be laws.”
In 1996, Congress passed the Communications Decency Act, prohibiting the knowing transmission or display of “obscene or indecent” messages to minors using the Internet. A unanimous Supreme Court struck down the law (with the exception of Section 230) in Reno v. ACLU, holding that it chilled protected speech, in part because there was no way for users in chat rooms, newsgroups, etc. to know the age of other users—and even if there was, a heckler’s veto could be easily imposed by
any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child…would be present.
The Court rejected the government’s argument that affirmative defenses for use of age-verification methods (in particular credit card verification) saved the law, noting that not every adult has a credit card, and that existing age verification methods did not “actually preclude minors from posing as adults.”
So Congress tried again, passing the Child Online Protection Act (COPA) in 1998, ostensibly narrowed to only commercial enterprises, and again containing affirmative defenses for using age-verification. Again, the courts were not buying it: in a pair of decisions, the Third Circuit struck down COPA.
With respect to the viability of age verification, the court found that the affirmative defense was “effectively unavailable” because, again, entering a credit or debit card number does precisely nothing to verify a user’s age.
But more importantly, the court ruled that the entire idea of conditioning access to material on a government-imposed age verification scheme violates the First Amendment. Noting Supreme Court precedent “disapprov[ing] of content-based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech,” the Third Circuit ruled in 2003 that age-verification would chill protected speech:
We agree with the District Court’s determination that COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial. People may fear to transmit their personal information, and may also fear that their personal, identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.
In its second decision, coming in 2008, the court again agreed that “many users who are not willing to access information non-anonymously will be deterred from accessing the desired information.” And thus, after the Supreme Court denied cert, COPA—and the notion that government could force websites to age-verify users—died.
Until now.
Age Verification Today
Has anything changed that would render these laws newly-constitutional? One might argue that age-verification technologies have improved, and are no longer as crude as “enter a credit card number.” I suppose that’s true in a sense, but not a meaningful one. HB 1181 requires age verification by either (a) a user providing “digital identification” (left undefined), or (b) use of a commercial age-verification system that uses either government-issued ID or “a commercially reasonable method that relies on public or private transactional data.”
It stands to reason that if a minor can swipe a parent’s credit card for long enough to enter it into a verification service, they can do the same with a form of Government ID. Or even easier, they could just borrow one from an older friend or relative. And like entering a credit card number, simply entering (or photographing) a government ID does not ensure that the person doing so is the owner of that ID. And what of verification solutions that rely on selfies or live video? There is very good reason to doubt that they are any more reliable: the first page of Google search results for “trick selfie verification” turns up numerous methods for bypassing verification using free, easy-to-use software. Even the French, who very much want online age-verification to be a thing, have acknowledged that all current methods “are circumventable and intrusive.”
But even assuming that there was a reliable way to do age verification, the First Amendment problem remains: HB 1181 requires adult users to sacrifice their anonymity in order to access content disfavored by the government, and First Amendment jurisprudence on that point has not changed since 2008. Texas might argue that because HB 1181 prohibits websites or verification services from retaining any identifying information, the chilling harm is mitigated. But there are two problems with that argument:
First, on a practical level, I don’t know how that prohibition can work. A Texas attorney general suing a platform for violating the law will have to point to specific instances where an entity failed to age-verify. But how, exactly, is an entity to prove that it indeed did perform adequate verification, if it must delete all the proof? Surely just keeping a record that verification occurred wouldn’t be acceptable to Texas—otherwise companies could simply create the record for each user and Texas would have no way of disproving it.
Second, whether or not entities retain identification information is entirely irrelevant. The chilling effect isn’t dependent on whether or not a user’s browsing history or personal information is ultimately revealed. It occurs because the user is asked for their identifying information in the first place. Few if any users are even likely to even know about the data retention prohibition. All they will know is that they are being asked to hand over ID to access content that they might not want associated with their identity—and many will likely refrain as a result. The de-anonymization to anyone, for any amount of time, is what causes the First Amendment harm.
Technology has changed, but humans and the First Amendment…not so much. Age verification remains a threat to user privacy and security, and to protected First Amendment activity.
Anti-Porn Disclaimers
HB 1181 also requires covered entities to display three conspicuous notices on their home page (and any advertising for their website):
TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.
TEXAS HEALTH AND HUMAN SERVICES WARNING: Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.
TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography increases the demand for prostitution, child exploitation, and child pornography.
It’s obvious what Texas is trying to do here. And it’s also obvious what Texas will argue: “The government often forces companies to place warnings on dangerous products, just look at cigarette packages. That’s what we’re doing here too!”
You can likely anticipate what I have to think about that, but it’s worth interrogating in some depth to see exactly why it’s so very wrong.
What Kind of Speech Regulation is This?
Obviously, HB 1181 compels speech. In First Amendment jurisprudence, compelled speech is generally anathema, and subject to strict scrutiny. But the government has more leeway to regulate (or compel) “commercial speech,” that is, non-misleading speech that “does no more than propose a commercial transaction” or “relate[s] solely to the economic interests of the speaker and its audience.”
At the outset, I am skeptical that this is a commercial speech regulation. True, it applies only to “commercial entities” (defined effectively as any legally recognized business entity), but speech by a business entity is not ipso facto commercial speech, nor does a profit motive automatically render speech “commercial.” Imagine, for example, that 30% of Twitter content was found to be pornographic. Twitter makes money through its Twitter Blue subscriptions and advertisements. But does that make Twitter as a whole, and every piece of content on it, “commercial speech?” Certainly not. See Riley v. National Federation of Blind, 487 U.S. 781, 796 (1988) (when commercial speech is “inextricably intertwined with otherwise fully protected speech,” the relaxed standards for commercial speech are inapplicable).
And even as applied to commercial pornography websites in the traditional sense1 (presuming that in this application, courts would view the notice requirement as a commercial speech regulation), HB 1181 might be in trouble. In International Outdoor, Inc. v. City of Troy, the Sixth Circuit persuasively reasoned that even commercial regulations are subject to strict scrutiny when they are content based (as HB 1181 plainly is), particularly where they also regulate noncommercial speech (as HB 1181 plainly does). If strict scrutiny is the applicable constitutional standard, the law is certainly dead.
But let’s assume for the sake of argument that we are in Commercial Speech Land, because either way the notice requirement is unconstitutional.
Constitutional Standards for Compelled Commercial Speech
For a commercial speech regulation to be constitutional, it must directly advance a substantial government interest and be narrowly tailored so as not to be more extensive than necessary to further that interest—known as the Central Hudson test.
But there’s another wrinkle: certain compelled commercial disclosures are subjected to the lower constitutional standard articulated in Zauderer v. Office of Disciplinary Counsel. Under Zauderer, compelled disclosures of “purely factual and uncontroversial information” must only “reasonably relate” to a substantial government interest and not be unjustified or unduly burdensome. What type of government interest suffices has been a matter of controversy: Zauderer (and Supreme Court cases applying it) have, on their face, related to remedying or preventing consumer deception in advertising.2 But multiple appellate courts have held that the government interest need not be related to consumer deception.
Would the HB 1181 Receive the More Permissive Zauderer Analysis_?_
Setting aside the question of government interest for just a moment, the HB 1181 notices are clearly not governed by the lower Zauderer standard because in no way are they “purely factual and uncontroversial.”
In 2015, the U.S. Court of Appeals for the D.C. Circuit struck down a regulation requiring (to simplify) labeling of “conflict minerals.” While the origin of minerals might be a factual matter, the court found that the “not conflict free” label was not “non-ideological” (i.e., uncontroversial): it conveyed “moral responsibility for the Congo war” and required sellers to “publicly condemn [themselves]” and tell consumers that their products are “ethically tainted.”
Dissenting, Judge Srinivasan would have read “uncontroversial” as relating to “factual”—that is, disclosures are uncontroversial if they disclose facts that are indisputably accurate. Even under Judge Srinivasan’s more permissive construction, the HB 1181 notices are not factual and uncontroversial. They are, quite simply, standard hysterical anti-porn lobby talking points—some rejected by science and in every other case hotly disputed by professionals and the scientific literature.
And then the Supreme Court decided National Institute of Family & Life Advocates v. Becerra (NIFLA), striking down a California regulation requiring family planning clinics to disseminate a government notice regarding state-provided family-planning services, including abortion—”anything but an ‘uncontroversial’ topic,” the Court noted. In a later case, the Ninth Circuit explained that the notices in NIFLA were not “uncontroversial” under Zauderer because they “took sides in a heated political controversy, forcing [clinics opposed to abortion] to convey a message fundamentally at odds with its mission.”
However you look at it, these notices are not “factual and uncontroversial.” They make claims that are by no means established facts (one might even call them opinions), put the government thumb on the scale in support of them, and force speakers to promote controversial hot-button views that condemn their own constitutionally protected speech. They are simply not the type of disclosures that Zauderer contemplates.
Do the Notices Satisfy the Central Hudson Test?
I’ll admit to hiding the ball a little in order to talk about Zauderer. Regardless of whether Zauderer or Central Hudson controls, the first step of the analysis would remain the same: does the government have a substantial interest?
It seems clear to me that the answer is “no,” so the notice requirement would fail scrutiny either way.
Texas may argue that its interest is “protecting the physical and psychological well-being of minors,” as the federal government asserted when defending the CDA and COPA. While the Supreme Court has held that interest to be compelling, I’m not sure Texas can plausibly claim it here. If the harm to minors comes from viewing porn, but the age verification requirement prevents them from seeing the porn while they are minors, is there a substantial government interest in telling them that the porn they can’t even access is “bad?” To my mind, it doesn’t adequately square. (Admittedly, this may be more of a question of whether the notices “directly advance” the government interest.)
The plain language of the notices evince a much broader theme. To the extent that Texas is trying to protect minors, it seems that it is also trying to protect them from the “harms” of porn even once they are _no longer minors_—that is, to keep them from getting “hooked on porn” ever. In that sense, the notice requirement is aimed as much at adults as it is at minors. The message is clear: porn is harmful and bad—no matter what age you are—and you should abstain from consuming it.
Here’s where Texas will invariably analogize HB 1181 to mandated warning labels on cigarettes. “It’s constitutionally permissible to force companies to label dangerous products, and that’s all we’re doing,” Texas will say. But the government interest there is to reduce smoking rates—thereby protecting consumer and public health from a physical product that definitively causes serious and deadly physical disease.
HB 1181 is different in every respect, by a country mile. Distilled to its core, the government interest that Texas must be asserting is: generally reducing the consumption of protected expression disfavored by a government that considers it psychologically harmful to readers/viewers. HB 1181 seeks to protect citizens not from a product with physical effects,3 but rather, from ideas and how they make us think and feel.4 Can that be any government interest at all, let alone a substantial one?
It’s a startling proposition that would give government the power to shape the contours of public discourse in ways entirely at odds with First Amendment principles. Could the government invoke an interest in protecting the public from the psychological harms of hateful speech and demand that any commercial entity distributing it affix a warning label dissuading readers from consuming it? What about the damaging effects (including on health) of political polarizations? Could the government rely on those harms and force “partisan media” to issue warnings about the dangers of their content? Must gun-related periodicals warn readers that “gun culture” leads to mass shootings at the government’s demand? Or can fashion magazines be forced to tell readers that looking at skinny people causes low self-esteem eating disorders? You get the picture.
Consider New York’s “Hateful Conduct Law,” recently struck down by a federal district court in a challenge brought by Eugene Volokh and and two social media platforms. That law requires any commercial operator of a service that allows users to share content to establish a mechanism for users to complain about “hateful conduct” and post a policy detailing how such reports will be addressed. (Notably, the court rejected New York’s assertion that the law only compelled commercial speech.) While the court ultimately accepted “reducing instances of hate-fueled mass shootings” as a compelling government interest (and then held the law not narrowly tailored), it explained in a footnote that “a state’s desire to reduce [constitutionally protected speech] from the public discourse cannot be a compelling government interest.”
And that is clearly the aim of the HB 1181 notices: to reduce porn consumption. To my mind, this is no different than the Supreme Court’s rejection in Matal v. Tam of a government interest in “preventing speech…that offend[s].” Offense, after all, is a psychological impact that can affect mental well-being. But the First Amendment demands that government stay out of the business of deciding whether protected speech is “good” or “bad” for us.
The wholly unestablished nature of the claims made in HB 1181’s notices also cut against the sufficiency of Texas’s interest. In Brown v. Entertainment Merchants Association, California could not draw a direct link between violent video games and “harm to minors,” so it instead relied on “predictive judgments” based on “competing psychological studies” to establish a compelling government interest. But the Supreme Court demanded more than “ambiguous proof,” noting that the case California relied on for a lower burden “applied to intermediate scrutiny to a content-neutral regulation.” (emphasis in original)
While (presuming again that this is in fact a commercial speech regulation) we may be Intermediate Scrutiny Land, we are also in Unquestionably Content-Based Land—and I think that counts for something. In all respects, HB 1181’s notice requirement is a content-based regulation justified by the (state’s theorized) reaction of listeners. See Boos v. Barry, 485 U.S. 312, 321 (1988) (“[I]f the ordinance…was justified by the city’s desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate.”). While I am doubtful that Texas can ultimately assert any substantial interest here, at the very least any asserted interest must be solidly supported rather than moralistic cherry picking.
In sum, I do not see how any state interest in reducing the consumption (and thus ultimately proliferation) of entirely protected speech can itself be a legitimate one. By extension, I think that invalidates any government interest in protecting recipients of that speech from the psychological effects of that speech—the entire point of expression is to have some kind of impact. Speech can of course have harmful effects at times, and the government is free to use its own speech, on its own time, to encourage citizens to make healthy decisions. But it can’t force speakers to warn recipients that their speech ought not be listened to.
So why do state legislatures keep introducing and passing laws that are undercut by such clear lines of precedent? The “innocent” answer is that they simply do not care: once they’ve completed the part where they “do something,” they can get the media spots and do the chest-pounding and fundraising—whether the law is ultimately struck down is immaterial. The more sinister answer is that, believing that they have a sympathetic Supreme Court, they are actively manufacturing cases in the hopes that they can remake the First Amendment to their liking. Here’s hoping they fail.
1 In contrast, I think that a porn site that provides content (especially if user-uploaded) for free and relies on revenue from advertising is more akin to Twitter than it is to a pay-for-access site for commercial speech purposes.
2 For a good treatment of the Supreme Court’s Zauderer jurisprudence and analysis of its applicability to content moderation transparency laws, see Eric Goldman, Zauderer and Compelled Editorial Transparency: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4246090
3 Notably, some courts have expressed skepticism (without deciding) that a government could even assert “a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences [i.e., cigarettes].
4 Unlike cigarettes, the ideas and expression contained within books, films, music, etc (as opposed to the physical medium) are not considered “products” for products liability purposes, and courts have rejected invitations to hold otherwise on First Amendment grounds. See, e.g., Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315 (S.D.N.Y. 2006).
Originally posted to Ari Cohn’s Substack.
Filed Under: 1st amendment, adult content, age verification, hb 1181, porn license, texas
Texas Age Verification Bill Would Plaster Health Warnings On Porn Sites
from the bull-shit-pseudoscience dept
Just when we didn’t think the state of Texas could get any more wacko on tech policy, this latest bill really suggests otherwise. House Bill 1181 is an age verification measure that is similar to what we’ve seen in the state legislatures across other red U.S. states.
You have an age verification proposal that is similar to Louisiana Act 440 and Utah’s Senate Bill 287 – all porn sites with users from these states must have a government ID or a credit card in order to verify age in order to watch age-restricted content. But, the bill itself takes an extreme turn in the guise of protecting the general public’s health.
House Bill 1181, introduced by a team of anti-porn legislators, would require porn sites to post public health warnings from the Texas Health and Human Services Commission as if it were a pack of cigarettes or a bottle of wine. I briefly reviewed the bill and found it presented as if it were a measure to counter youth electronic cigarette usage through punitive means or to add a public health tinge to a crisis that isn’t necessarily related to public health or even a crisis in some circles. In fact, Texas – among other states – has always been at the center of the movement to make porn consumption a health crisis.
HB 1181 would issue public health warnings including claims that porn use “increases the demand for prostitution, child exploitation, and child pornography.” Claims that are included in the health warnings laid out by the bill suggest that porn use is “potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.” Or, that exposure to porn “is associated with low self-esteem and body image eating disorders, impaired brain development, and other emotional and mental illnesses.” Note how they use the term “exposure” as if a person watching porn was exposed to a real disease.
Such warnings follow talking points laid out by resolutions passed by state legislatures classifying pornography as a public health crisis. In 2019, Governing interviewed GOP Utah state Sen. Todd Weiler – the first state lawmaker in the union to introduce model legislation recognizing pornography as a risk to public health. The model legislation is the brainchild of an anti-porn group, the National Center on Sexual Exploitation, and is by no means an original campaign to try and prohibit otherwise protected forms of speech.
In this report, Weiler lauded the center despite the fact that he was essentially signing onto a right-wing movement that’s been debunked legally and, importantly, scientifically.
There is no such thing as porn addiction. The American Psychiatric Association and the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) point out that pornography addiction isn’t an official diagnosis recognized by the major medical and scientific communities at large. Rather, any problem with pornography consumption can be attributed to compulsive sexual behavior or something similar to that. There is a clear difference between compulsion and addiction as determined by urge versus need.
Neuroscientists Nicole Prause and Vaughn Steele have produced peer-reviewed studies on porn addiction. A study published in the journal Biological Psychology several years ago reaffirmed previous findings that porn and sex addiction are not real by any means.
“The statements on science effects are just false, they have never been shown,” said Prause in an email to me. She elaborated that the “science” referred to in House Bill 1181 is “completely fabricated.” “APA and WHO both rejected sex and pornography as addictions because they are not. The bill flies in the face of scientific consensus.”
Michael McGrady is a journalist and commentator focusing on the tech side of the online porn business, among other things
Filed Under: hb 1181, health warnings, moral panic, porn, porn addiction, texas