FSC Wins Preliminary Injunction Against Texas Anti-Porn Law

“This is a huge and important victory against the rising tide of censorship online,” FSC Executive Director Alison Boden said of the court’s order. “From the beginning, we have argued that the Texas law, and those like it, are both dangerous and unconstitutional. We’re [pleased] that the Court agreed with our view that HB1181’s true purpose is not to protect young people, but to prevent Texans from enjoying First Amendment protected expression. The state’s defense of the law was not based in science or technology, but ideology and politics.”

In its statement, the FSC noted the court “agreed with FSC and our co-plaintiffs on nearly every argument,” including the assertions “violates First Amendment rights of creators and consumers,” the claim the law would have “a chilling effect on legally-protected speech,” the argument that available content filtration software presents “a less restrictive and more effective method of protecting minors” and that the state “does not have the right to compel speech in the form of health warnings.”

“The ruling rebuffs nearly every argument made by state legislatures, and not only in Texas,” Boden said. “While Texas presented the most straightforward path to securing a ruling like this, the issues are the same whether in Utah, Louisiana or Virginia. Anyone who attempts to bring a case in those jurisdictions faces little hope of success. We are thrilled with the decision and thank our co-plaintiffs for joining this battle and defending the industry. We are confident that the law will ultimately be struck down permanently.”

In opposing the FSC’s motion for a preliminary injunction, Texas Interim Attorney General Angela Colmenero asserted that none of the plaintiffs in the case could “meet their heavy burden to clearly show likelihood of success on the merits.” Colmenero also asserted the FSC and several of the organization’s co-plaintiffs lacked standing to sue. Clearly, the court disagreed.

In parts of the order, Ezra appears to suggest the Colmenero either misapprehends the legal standards at play or misrepresented them in her opposition to the preliminary injunction.

“Defendant contends that Free Speech Coalition lacks associational standing because it has not identified one member with individual standing in its motion for preliminary injunction,” Ezra wrote. “While an association does have to identify a member with individual standing, it need not do so in the preliminary injunction motion in addition to the complaint. In plaintiff’s complaint, they identify members of the association, including directors, distributors and actors.”

Colmenero also had asserted that foreign plaintiffs enjoy no constitutional protections and therefor can have no valid constitutional claims. Wrong again, Ezra held.

“Defendant repeatedly emphasizes that the foreign website plaintiffs “have no valid constitutional claims” because they reside outside the United States,” Ezra wrote. “First, it is worth noting that this argument, even if successful, would not bar the remaining plaintiffs within the United States from bringing their claims.”

Then, distinguishing the case at hand from the one cited by Colmenero (Agency for International Development v. Alliance for Open Society International), Ezra observed the case Colmenero cited involved “foreign nongovernmental organizations that received aid – outside the United States – to distribute outside the United States.”

“These NGOs operated abroad and challenged USAID’s ability to condition aid based on whether an NGO had a policy against prostitution and sex trafficking,” Ezra noted. “By contrast, the foreign plaintiffs here seek to exercise their First Amendment rights only as applied to their conduct inside the United States and as a preemptive defense to civil prosecution. Indeed, courts have typically awarded First Amendment protections to foreign companies with operations in the United States with little thought.”

Ezra also found that the law’s age verification requirement is subject to strict scrutiny (Colmenero unsuccessfully argued a lower standard should apply), reasoning that just like previously challenged statutes like the Child Online Protection Act (“COPA”) “HB 1181 regulates beyond obscene materials.”

“As a result, the regulation is based on whether content contains sexual material. Because the law restricts access to speech based on the material’s content, it is subject to strict scrutiny.”

Addressing Colmenero’s citation of a Justice Antonin Scalia’s dissent Ashcroft v. ACLU, Ezra notes that the defendant “largely concedes that strict scrutiny applies, but hopes that HB 1181 should be ‘subject to a lower standard of judicial scrutiny because it regulates only commercial entities, publication and distribution of material harmful to minors.’”

“As defendant tacitly acknowledges, a district court is not at liberty to disregard existing Supreme Court precedent in favor of a dissenting opinion,” Ezra added. “Nor is defendant entitled to contest plaintiff’s likelihood of success based on the possibility that the Supreme Court may revisit its precedent. This Court cannot reduce the applicable level of scrutiny based on a non-binding, dissenting opinion.”

Ezra also didn’t seem impressed with Colmenero’s assertion that all the content published on the plaintiffs’ websites is “obscene.”

“Defendant argues that plaintiffs’ content is ‘obscene’ and therefore underserving of First Amendment coverage,” Ezra wrote. “Again, this is precedent that the Supreme Court may opt to revisit, but we are bound by the current Miller (Test) framework. Moreover, even if we were to abandon Miller, the law would still cover First Amendment-protected speech.”

Ezra also found that HB 1181 “is not narrowly tailored” and “severely underinclusive” with respect to how it goes about its purported goal of protecting children.

“HB 1181 will regulate adult video companies that post sexual material to their website,” Ezra conceded. “But it will do little else to prevent children from accessing pornography. Search engines, for example, do not need to implement age verification, even when they are aware that someone is using their services to view pornography.”

Ezra flags as “even more problematic” the fact the law “applies only to the subset of pornographic websites that are subject to personal jurisdiction in Texas.”

“Indeed, defendant implicitly concedes this when they argue that the foreign adult video company plaintiffs are not subject to jurisdiction in the United States,” Ezra observed. “If foreign websites are not subject to personal jurisdiction in Texas, then HB 1181 will have no valid enforcement mechanism against those websites, leaving minors able to access any pornography as long as it is hosted by foreign websites with no ties to the United States.”

Turning his attention to the “warning labels” required under HB 1181, Ezra held that the law “unconstitutionally compels speech.”

“There is no doubt that HB 1181 forces the adult video companies into compelled speech,” Ezra found. After describing the three required warning labels, Ezra flatly concludes: “This is compelled speech.”

“The government is forcing commercial sites to speak and broadcast a proposition that they disagree with. The Supreme Court has ‘held time and again that freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.’… Even if, as the defendant argues, the law compels only commercial speech, it does not pass constitutional muster.”

Further, as Ezra noted elsewhere in his order, while the warning labels required under the law carry the label “Texas Health and Human Services,” it appears the “Texas Health and Human Services Commission has not made these findings or announcements.”

“More generally, the state has not met its burden that the disclosures are narrowly tailored in general,” Ezra added. “They require large fonts, multiple warnings, and phone numbers to mental health helplines. But the state provides virtually no evidence that this is an effective method to combat children’s access to sexual material. The messages themselves do not mention health effects on minors. And the language requires a relatively high reading level, such as ‘potentially biologically addictive,’ ‘desensitizes brain development’ and ‘increases conditioned responses.’ Quite plainly, these are not disclosures that most minors would understand. Moreover, the disclosures are restrictive, impinging on the website’s First Amendment expression by forcing them to speak government messages that have not been shown to reduce or deter minors’ access to pornography.”

You can read Ezra’s full order here.