Texas Asks Court to Dismiss Age Verification Lawsuit

AUSTIN—Angela Colmenero, the interim Attorney General of Texas, has responded to the lawsuit naming her brought by adult industry trade group the Free Speech Coalition and a class of plaintiffs that includes the parent companies of multiple adult sites. Colmenero, named by Republican Gov. Greg Abbott to act in place of impeached Attorney General Ken Paxton, requested the court to dismiss claims brought by the plaintiffs and called the case baseless. “A law requiring porn sites to turn away children is no different than one that prohibits a strip club from operating next to an elementary school or allowing a 13-year-old to enter,” Colmenero writes in her response to the motion of the plaintiffs for a preliminary injunction of the state's recently passed age-verification law for adult websites. Counsel representing the plaintiffs—which include the parent companies of Pornhub, XVideos and other platforms—responded to Colmenero’s filing by similarly characterizing it as lacking merits. “The state has no cognizable interest in singling out disfavored viewpoints and speakers for condemnation, even as the same content continues to flow freely to minors through other channels (like search engines and social media),” argues attorney Scott L. Cole, a Quinn Emanuel Urquhart & Sullivan LLP partner in Austin, TX representing the plaintiffs with lawyers pro hac vice from Quinn Emanuel in Los Angeles and Webb Daniel Friedland LLP from New Orleans.  The lawsuit, which was announced earlier this month in a press statement by the Free Speech Coalition, seeks to block the controversial new Texas law, which in addition to mandating age verification of adults looking to access age-restricted content further requires adult site operators to post pseudoscientific public health warnings about the risks of porn similar to those required on alcohol and e-cigarettes.  Critics of the law have characterized it as far-reaching and potentially unconstitutional. In particular, the state of Texas has to plead a case that it has the right to regulate interstate commerce, which is a clearly outlined function of Congress and the U.S. federal government. On other fronts, counsel for the plaintiffs alleges First Amendment, Eighth Amendment and Fourteenth Amendment violations built into the law, House Bill 1181. Texas lawmakers have also filed amicus briefs asking the court to additionally dismiss the claim that House Bill 1181 is unconstitutional and to allow the law to enter force. Pornhub’s lawsuit against Texas hasn’t gone unnoticed in the Lone Star state. The editorial board for the Fort Worth Star-Telegram, a right-of-center local news daily, calls the lawsuit an “affront” to parental rights. Age verification requirements and mandatory public health labeling on porn sites go into effect on September 1. Though at this point pure speculation, it is highly likely that co-paintiff Aylo (formerly MindGeek, the parent company to Pornhub and MG Premium) will geoblock IP addresses in Texas as it has done in Virginia, Utah, Mississippi and Arkansas. The controversy over age verification in the adult industry has largely revolved around one particular point for which Pornhub and others have repeatedly argued.  “The only viable solution that will make the internet safer, preserve user privacy, and stands to prevent children from accessing material harmful to minors is performing age verification at the source: on the device itself,” read a late July blog post on Pornhub articulating this central argument.  But, age verification requirements must be applied equally to all platforms, or the intention behind them will become moot as users will go to platforms—typically foreign ones—that aren’t afraid to violate local, state and federal laws. This is what’s happening in Virginia and other states. The Virginia Mercury reports that some of the most prominent tube sites in adult entertainment aren’t complying with the law there. Only tube site xHamster has age verification measures in place, with Aylo-owned Pornhub out of the entire local market. VPNs are also more widespread, reports the Mercury’s Meghan McIntyre. The Texas lawsuit is before the U.S. District Court for the Western District of Texas in Austin, where a hearing is taking place today on the FSC's preliminary injunction motion.