Texas Bill Would Create Broad Civil Liability for Obscenity Offenses

The bill, HB 3357, was introduced by Rep. Nate Schatzline, a Republican representing Texas House District 93. In a tweet published last week, Schatzline said his bill “will protect children from obscene content online and hold companies accountable for the content their audience is exposed to.”

According to an analysis by George Christian of the Texas Civil Justice League (“TCJL”), “HB 3357 creates a new private cause of action for damages ‘if the defendant: (1) engages in obscenity; or (2) knowingly or intentionally benefits from participating in an entity that engages in obscenity.’”

The bill also holds an “information content provider or interactive computer service” liable for damages “arising from the distribution, transmission, or display of harmful material to a minor if, knowing the character and content of the material, the provider or service knowingly or intentionally benefits from participating” in disseminating the “harmful material” by “facilitating, aiding, encouraging, or contributing to” the dissemination “in a manner that: (1) is readily accessible to minors; or (2) includes a minor’s visual image, audio voice, or participation in any manner.”

The TCJL analysis adds that HB 3357 “makes a shareholder or member of a legal entity jointly and severally liable with a defendant entity if the shareholder or member received a ‘direct personal benefit,’” and “directs a court to award a prevailing plaintiff actual damages, including mental anguish damages regardless of physical or any other harm, court costs, attorney’s fees, and punitive damages” and that under the law, defendants would be “jointly and severally liable and the same defendants may be sued multiple times for the same conduct.”

In addition to content providers and computer services themselves, HB 3357 creates a cause of action against shareholders and members of such entities.

“In other words, HB 3357 exposes to civil liability all employees, officers, directors, and shareholders of all private and public entities, if they have a website that in some way may be viewed by somebody as containing ‘obscene’ material,” Christian writes.

You can read the full TCJL analysis here. There’s a great deal more on TCJL’s list of concerns about HB 3357 than is addressed in this post – enough to make you wonder if this bill might have constitutional defects that would make it vulnerable to legal challenge. But, as attorney Larry Walters told YNOT, “the problem you run into with challenging this law, and the many other age verification laws making the rounds currently, is who can mount a challenge?”

Walters was asked in the context of another question concerning the bill’s disposition towards Section 230 of the Communications Decency Act, and whether HB 3357 might contradict aspects of Section 230 and case law related to the federal statute.

“The challenger must have legal standing to file suit or raise the constitutionality of the law and/or Section 230 immunity as a defense,” Walters explained. “So, until somebody is sued for damages, a court will not likely have an opportunity to rule on the constitutional issues or the scope of Section 230 immunity.”

In terms of the bill’s interaction with Section 230’s limitation on liability with respect to material published by third parties, Walters added that there’s “no state-level obscenity exception to Section 230 immunity, and it appears that any interactive service provider sued civilly for a violation of this proposed bill would be entitled to assert immunity from suit if the underlying liability is premised on content uploaded to the service by a third party user.”

“FOSTA/SESTA carved out specific exceptions to Section 230 immunity for civil sex trafficking actions where the service provider knowingly benefits from sex trafficking or actively participates in sex trafficking venture,” Walters added. “Use of similar words in the Texas bill does not avoid Section 230 immunity since state-level obscenity violations are not included in any existing Section 230 immunity carve out. The DOJ still has the authority to enforce federal obscenity offenses, along with all other federal criminal laws, without any Section 230 bar.”

YNOT will continue to monitor the progress of HB 3357 through the Texas House and report on future developments.

Texas State Capitol photo by LoneStarMike licensed under the Creative Commons Attribution 3.0 Unported license. It has been cropped and resized.