Main: FILE – Members of the Supreme Court sit for a group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Oct. 7, 2022. Bottom row, from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan. Top row, from left, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh, and Associate Justice Ketanji Brown Jackson. (AP Photo/J. Scott Applewhite, File). Inset: Pornhub banner at the 2018 AVN Adult Entertainment Expo at the Hard Rock Hotel & Casino on January 24, 2018 in Las Vegas, Nevada (Image by Ethan Miller/Getty Images).
The adult entertainment industry will ask the U.S. Supreme Court to block a Texas law that requires porn websites to verify the age of users. The case presents the justices with a chance to opine on the legal protections afforded to pornography, particularly in the context of the internet.
The nation’s most conservative appeals court — the New Orleans-based U.S. Court of Appeals for the Fifth Circuit — ruled on March 7 to overturn a district court injunction that blocked Texas H.B. 1181. The law requires internet companies whose content consists of more than one-third “sexual material harmful to minors” to “use reasonable age verification methods” to limit their distribution to adults, and to display a health warning before showing any such materials. Embattled Texas Attorney General Ken Paxton began enforcing the law in February, and shortly thereafter began a $1.6 million civil action against PornHub for noncompliance. The Free Speech Coalition, an association of the adult film industry, sued to block the Texas law, claiming that it both violated the First Amendment and conflicts with Section 230 of the Communications Decency Act. Section 230 is the federal statute that protects internet platforms from liability based on third-party content that violates the law.
Senior U.S. District Judge David Ezra, a Ronald Reagan appointee, presided over the case at the district court level in Texas. Ezra found that the plaintiff group had standing to sue, that Texas’s age-verification requirement failed strict scrutiny, and that the statute conflicts with Section 230. Ezra issued a preliminary injunction on the grounds that plaintiffs were likely to succeed on the merits of the case. Texas appealed that ruing to a three-judge panel of the Fifth Circuit, which then reversed.
The panel included George W. Bush appointee Jennifer Walker Elrod and Ronald Reagan appointees Jerry Edwin Smith and Patrick Higginbotham.
In a 2-1 ruling, the Fifth Circuit found that strict scrutiny did not apply to the regulation, and that only rational basis review was warranted given that the law applied to minors. Applying the far lower standard of review, Smith wrote for the majority that Texas’ law “easily surmounts” the requisite legal hurdles, and therefore, is constitutional.
The panel further found that H.B. 1181 was not preempted by Section 230 because it imposes liability for what the internet companies themselves do, rather than true third-party speech.
Higginbotham penned a solo opinion, vehemently dissenting from the majority’s ruling on free speech. The judge wrote that the majority “unjustifiably places the government’s interest upon a pedestal unsupported by Supreme Court precedent,” and reminded that content-based regulations are presumed invalid and require heightened scrutiny.
Higginbotham reasoned that, “Although obscene speech lies outside the First Amendment’s umbrella of protection, not all sexual expression is obscene.”
The judge went on to say that “many romance novels,” “Marlon Brando movies,” scenes from “Game of Thrones,” “The Color Purple,” and “The Girl with the Dragon Tattoo,” all contain depictions of sexual expression that may be offensive to children, but are not legally “obscene,” because they have cinematic value for adults.
Limiting everyone’s access to material simply because it could be inappropriate for minors would be far more than is necessary to accomplish the state’s goals, said Higginbotham.
“Such action ‘is to burn the house to roast the pig,”” Higginbotham warned.
In a filing Monday, the Free Speech Coalition asked the Fifth Circuit to stay its decision pending an appeal to the U.S. Supreme Court. It noted that the Fifth Circuit’s decision is at odds with prior First Amendment rulings by the Supreme Court and argued that the matter creates a circuit split over the law applicable to distribution of obscene materials to minors.
Attorney Derek Shaffer, who represents The Free Speech Coalition, confirmed to Law&Crime in an email Wednesday that a petition for certiorari will be filed in the case in the near future.
