Analysis: Texas Ruling an Important Strike Back for Free Speech

AUSTIN—A federal district judge in Texas granted a preliminary injunction blocking House Bill (HB) 1181 from going into effect on September 1. The news wires lit up after Senior U.S. District Judge David Alan Ezra ruled that HB 1181, a controversial age verification and labeling law targeting adult websites, was unconstitutional on the grounds that it violated the First Amendment. The Free Speech Coalition and parent companies of some of the most popular adult websites on the internet filed suit in August in an attempt to block the Texas law, which was especially punitive compared to other age verification mandates passed elsewhere. One of the subsidiaries of Aylo (formerly MindGeek) was named a plaintiff in the lawsuit against the state of Texas and interim Attorney General Angela Colmenero, a conservative Republican who served as general counsel for Gov. Greg Abbott. In a statement emailed to AVN, a spokesperson for Aylo said the ownership group welcomed the federal court’s decision, adding that the ruling “reaffirms our position that the age verification law implemented in Texas is unconstitutional.”  “We have publicly supported mandatory age verification of adult content viewers for years, but any method of age verification must preserve user privacy and safety,” said the spokesperson, referring to the company’s recent activism in favor of device-level age verification as a means to restrict minors from accessing age-restricted material. Aylo, which owns Pornhub, published a blog post over the summer outlining the company’s position on age verification laws across the United States. The blog post explains why Aylo withdrew from specific states by blocking all IP addresses within in them—namely Utah, Arkansas, Virginia and Mississipi. If it weren’t for the ruling reached last week, Texas would’ve been the most populous state in the country—about 30 million people—to have been geo-blocked by an adult entertainment platform. Luckily, this didn’t have to happen. Indeed, Judge Ezra's decision is excellent news for the adult industry and digital rights activists who raised the alarm of potential censorship and data security risks to adult users. However, some aspects of the ruling need to be analyzed in much greater detail. Companies and the Free Speech Coalition sued partly due to the concern of compelled product warning labeling. Or, in other words, so-called “public health” warnings that HB 1181 required every adult site with a user base from Texas to plaster across their platforms and on published advertisements across platforms. The legislation’s sponsors drafted language that imposes a labeling regime that purports false, pseudoscientific claims about porn addiction, like posting the U.S. Surgeon General’s warning on sites marketing alcoholic beverages or electronic cigarettes.  Judge Ezra completely gutted the labeling language under concerns for the Zauderer standard and other impositions on adult platforms that violate their entitled First Amendment rights. “The result is that a health disclaimer, ostensibly designed for minors, will be seen by adults visiting Pornhub, but not by minors visiting pornographic subreddits,” writes Judge Ezra. “In sum, the law is severely underinclusive. It nominally attempts to prevent minors’ access to pornography but contains substantial exemptions, including material most likely to serve as a gateway to pornography use.” Ezra points to how the language of the bill mainly focuses on web platforms with more than one-third of the content being of a sexual nature. Adding the dimension of the required age assurance makes the "health warnings" overkill, as they're meant for minors who are already weeded out from the age-gating filtration tech. “The court need not determine whether the under-inclusiveness is independently fatal at this stage,” notes the judge. “Rather, it is one of many elements of HB 1181 that show the law is not narrowly tailored.” Nothing in the law, as Ezra notes, is narrow—lesson one in lawmaking 101. A measure as broad as HB 1181 is indicative of sloppy policymaking in an attempt to force certain viewpoints of a very powerful minority (e.g., the far-right Republican lawmakers in Texas) onto a subservient majority (e.g., literally every Texan not in government or politics).  As an element of her argument, Colmenero, on behalf of Texas, argued that the producers of pornography and other sexual age-restricted content have no right to claim protection under the First Amendment.  Relying on an outdated interpretation of the Miller test for ruling something obscene or not, Colmenero echoed similar sentiments outlined in the bill, which relies on wholly flawed and misinformed assessments of porn’s impact on mental and behavioral health in adults and minors.  The defendants relied heavily on “think of the children”-style arguments after plaintiffs brought the initial motion for a preliminary injunction. A review of the opposition filing shows Colmenero reverting back to a set of arguments and claims that overwhelmingly have failed in federal courts before. The history of obscenity litigation in the U.S., especially in the 20th century, reached an apex when the U.S. Supreme Court ruled in Miller v. California. The high court at the time defined a three-pronged test to detect whether certain material or speech is viewed as obscene and not protected speech. A requirement of applying “local community standards” was applied to the Miller test and is still used in U.S. courts as the guideline as to what is considered obscene or not. Obscenity is illegal. Typically obscene material, per the definition of the test, includes non-consensual intimate imagery or child sexual abuse material posted on the internet without respect for age, agency or consent. A sexual image featuring consensual acts is protected and is entitled to coverage under the First Amendment. It is true that Miller has been applied inconsistently in some jurisdictions, but the majority of instances that deal with the obscenity status of certain materials often yield a ruling that reaffirms the First Amendment’s coverage over consensual sexual expression. Colmenero chose to adopt a popular talking point of industry critics who believe that blocking obscene material through such a broad approach is more crucial than protecting forms of expression that are entitled to the same levels of protection as religion, the press and political discourse. Ezra saw through this. Evidence referenced by the defendants to convince Ezra to block the motion for a preliminary injunction focused on perceived behavioral harms associated with problematic pornography use rather than addiction. In their filing, plaintiffs referred to the lack of evidence and consensus in the medical community surrounding the so-called theory of pornography addiction. Clinical data and insight from experts in the spaces of mental, behavioral and general medicine provided a convincing argument suggesting that many of the claims of pornography being addictive are not accepted by the broader scientific community. The American Psychiatric Association, which is the central body that publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM), doesn’t recognize pornography addiction as a diagnosis. Porn addiction isn’t a mental disorder or behavioral addiction; rather, problematic use of porn is a lack of regulation related to a person’s compulsivity to view such content. Colmenero overlooks this and continues to force the argument that porn is a public health crisis, a threat to public safety, and a symptom of a society lacking morals. Simply put, Colmenero shows her single-mindedness in a manner that Ezra unforgivingly rebuked. Labeling requirements were, in part, blocked due to the lack of medical and scientific evidence. HB 1181 requires adult sites to post warnings with the endorsement of the state’s public health and medical regulatory body, the Texas Health and Human Services Commission, in prominent typeface and font size at the top and bottom of adult websites. “Although these warnings carry the label ‘Texas Health and Human Services,’ it appears that the Texas Health and Human Services Commission has not made these findings or announcements,” points out Judge Ezra. Later in the order, he adds that “the warnings themselves are somewhat deceptive. Defendant has not shown that the Texas Health and Human Services Commission has actually endorsed the message or made the relevant medical findings, despite requiring speakers to display ‘TEXAS HEALTH AND HUMAN SERVICES WARNING’ three separate times in all caps. Because of the size and repeated nature of the warnings, as well as their potential for misleading visitors, they are likely to be unduly burdensome.” The labeling is unduly burdensome under the context of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. Here, the Supreme Court defined the aforementioned Zauderer standard. The high court ruled that a government cannot compel an advertiser or private company to communicate certain forms of speech to their customers unless it is “purely factual and uncontroversial information.” “As a political, religious, and social matter, consumption of pornography raises difficult and intensely debated questions about what level and type of sexual exposure is dangerous or healthy,” Judge Ezra adds near the end of his order. “The government cannot compel a proponent of pornography to display a highly controversial ‘disclosure’ that is profoundly antithetical to their beliefs.” Despite Ezra's ruling being eminently balanced, it has left critics of the porn industry quite angry. Notably, the New York Times published a viral opinion column written by conservative commentator and religious liberty attorney David French. French, who in recent years won praise among moderates and the political left for his criticism of indicted former President Donald Trump, referenced an opinion essay written by a high school student published by Bari Weiss’ The Free Press arguing to censor porn. French’s piece demonstrated a double standard. “Congress should try once again to clean up the internet the way cities cleaned up their red-light districts. The law must do what it can to restrict access to pornography for children online,” French writes, noting that our system of government in the United States hasn’t done anything to “ban porn for kids.” This belief that porn is generated for minors is an intentional rhetorical strategy meant to elicit even more panic among an already misinformed readership. French is known for defending religious rights, but he is openly and actively calling for censorship against a legal and regulated entertainment industry that has paved the way for many of the free speech rights that Americans enjoy.  He does this by furthering the narrative that members of the industry aren’t concerned with the viewing of age-restricted content by minors. “Moreover, even the judge who blocked the Texas law observed, ‘It is uncontested that pornography is generally inappropriate for children, and the state may regulate a minor’s access to pornography,’” French writes, referring to Ezra’s finding that the “the state may regulate a minor’s access to pornography.” Truly, this is uncontested.  However, the structure of French’s argument completely negates the active work taken by adult industry firms to prevent minors from accessing their content. As noted at length, the measure of age verification in the context of HB 1181 is unconstitutional due to how overly broad it is and the lack of equity in the process of enforcing the law. French is a lawyer. And admittedly a good one, at that. He still feels compelled to question the ruling of a conservative federal district judge who was simply indicating that age verification in this context is infeasible. That is disturbingly incredible but not surprising. Companies like Aylo do want age verification legal measures in place, but they want measures that apply equally and do not rely on political and religious talking points about sexuality to deliver such an intervention. The defendants have filed a notice of appeal to seek a review of Ezra's ruling before the notoriously conservative Fifth Circuit Court of Appeals.