FSC Files Suit Challenging Texas’ Age-Verification Mandate

In the complaint, FSC asserts the Act “joins a long tradition of unconstitutional — and ultimately failed — governmental attempts to regulate and censor free speech on the internet.”

“The Act in effect requires Plaintiffs to block access to their websites in Texas wholesale, unless they implement a system that requires all visitors to transmit their personal information to verify that they are at least eighteen years old,” FSC notes in the complaint. “The Act also purports to compel Plaintiffs to display a lengthy, controversial, and factually false ‘TEXAS HEALTH AND HUMAN SERVICES WARNING’ on their websites — maligning the very constitutionally protected content they feature.”

According to the complaint, the Act “violates the First, Eighth, and Fourteenth Amendments to the United States Constitution, as well as section 230 of the Communications Decency Act.”

“Texas is not only forcing sites to put their visitors’ privacy at risk, they are forcing them to broadcast misinformation and pseudoscience about sex and sexuality,” FSC Executive Director Alison Boden said. “We 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. We can all work to keep minors from accessing adult content, but allowing the government to dictate what information adults can see is unconscionable and unconstitutional.”

Joining FSC as co-plaintiffs in the case are a long list of adult platforms and workers, including MG Premium LTD; MG Freesites LTD; Webgroup Czech Republic, A.S.; NKL Associates, S.R.O.; Sonesta Technologies, S.R.O.; Sonesta Media, S.R.O.; Yellow Production S.R.O.; Paper Street Media, LLC; Neptune Media, LLC; Mediame SRL; Midus Holdings, INC.; and an adult content creator who joins the suit as a “Jane Doe” plaintiff in order to shield her identity and prevent harassment.

In the complaint, FSC argues the Act “fails strict scrutiny by employing the least effective and yet also the most restrictive means of accomplishing Texas’s stated purpose of allegedly protecting minors.”

FSC further notes “minors can use virtual private networks (‘VPNs’), proxy servers, the ‘Tor’ browser, and numerous other circumventions to bypass the Act’s verification requirements with ease; the law excludes search engines and most social media sites even though they pose a greater risk of exposure to adult content; and protected speech will be chilled as adults refuse to risk sharing and exposing their personal information that could lead to financial or reputational harm.”

FSC juxtaposes the state’s mandate with browse and device-level content filtering, noting that such filtering “allows anyone wishing to implement that technology on minors’ devices to block access to any unwanted site, including adult sites, without impairing free speech rights or privacy,” adding that these “far more effective and far less restrictive means don’t really matter to Texas, whose true aim is not to protect minors but to squelch constitutionally protected free speech that the State disfavors.”

In the lawsuit, FSC calls the Act’s “health warning” requirement “a classic example of the State mandating an orthodox viewpoint on a controversial issue.”

“Texas could easily spread its ideological, anti-pornography message through public service announcements and the like without foisting its viewpoint upon others through mandated statements that are a mix of falsehoods, discredited pseudo-science, and baseless accusations,” FSC adds in the complaint.

Under the Act, “a commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors, shall use reasonable age verification methods… to verify that an individual attempting to access the material is 18 years of age or older.”

The Act also requires sites subject to it to display the following notices “on the landing page of the Internet website on which sexual material harmful to minors is published or distributed and all advertisements for that Internet website” in 14-point font or larger:

“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.”

The law also requires sites to display the notice below  at the bottom of every page of the website, in 14-point font or larger:

“U.S. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION HELPLINE: 1-800-662-HELP (4357) THIS HELPLINE IS A FREE, CONFIDENTIAL INFORMATION SERVICE (IN ENGLISH OR SPANISH) OPEN 24 HOURS PER DAY, FOR INDIVIDUALS AND FAMILY MEMBERS FACING MENTAL HEALTH OR SUBSTANCE USE DISORDERS. THE SERVICE PROVIDES REFERRAL TO LOCAL TREATMENT FACILITIES, SUPPORT GROUPS, AND COMMUNITY-BASED ORGANIZATIONS.”

The Act provides for fines of “$10,000 per day that the entity operates an Internet website in violation of the age verification requirements of this chapter”, “$10,000 per instance when the entity retains identifying information in violation of Section 129B.002(b)” and “if, because of the entity’s violation of the age verification requirements of this chapter, one or more minors accesses sexual material harmful to minors, an additional amount of not more than $250,000.”

You can read the full FSC complaint here.