A federal judge has tentatively cleared Texas to require age verification to view pornographic websites.
In a ruling Friday, the U.S. Court of Appeals for the Fifth Circuit partially vacated a lower court’s original injunction that had paused the state’s enforcement of House Bill 1181.
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“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the court wrote in its ruling. “Therefore, the age-verification requirement does not violate the First Amendment.”
The plaintiffs could appeal the ruling to the U.S. Supreme Court, but for now, Texas is allowed to enforce the age-verification portion of the law.
Another part of the law — requiring health warnings, in addition to age verification — has not been cleared by the courts.
That part of the law was stopped by a lower court that found the law unconstitutionally compels speech by requiring adult sites to post health warnings they dispute — that pornography is addictive, impairs mental development and increases the demand for prostitution, child exploitation and child sexual abuse images.
“The disclosures state scientific findings as a matter of fact, when in reality, they range from heavily contested to unsupported by the evidence,” U.S. District Judge David Ezra wrote.
BACKGROUND
After the bill was signed into law by Texas Gov. Greg Abbott in June, a lawsuit was filed by the Free Speech Coalition, a trade association for the adult entertainment industry and a person identified as Jane Doe and described as an adult entertainer on various adult sites, including Pornhub.
The plaintiffs argued that the law violates free speech rights and is overbroad and vague.
The lawsuit was initially successful, as Judge Ezra sided with them and issued an injunction, pausing Texas’ ability to enforce the law. He wrote that the law raises privacy concerns because a permissible age verification is using a traceable government-issued identification and the government has access to and is not required to delete the data.
“People will be particularly concerned about accessing controversial speech when the state government can log and track that access,” Ezra wrote. “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.”
Ezra said Texas has a legitimate goal of protecting children from online sexual material, but noted other measures, including blocking and filtering software, exist.
The state attorney general’s office, which is defending the law, immediately filed a notice of appeal to the Fifth Circuit U.S. Court of Appeals in New Orleans. The court had initially paused the lower court’s injunction, but on Friday, green lit the age-verifcation portion of the law as constitutional.
The Texas law is one of several similar age verification laws passed in other states, including Arkansas, Mississippi, Utah and Louisiana.
The Texas law carries fines of up to $10,000 per violation that could be raised to up to $250,000 per violation by a minor.
The Utah law was upheld by a federal judge who last month rejected a lawsuit challenging it.
Arkansas’ law, which would have required parental consent for children to create new social media accounts, was struck down by a federal judge Thursday and a lawsuit challenging the Louisiana law is pending.