ACLU Files Amicus Brief in Texas Age Verification Case

AUSTIN—The national affiliate of the American Civil Liberties Union (ACLU) filed an amicus brief supporting the plaintiffs in a federal lawsuit challenging the constitutionality of a Texas law that requires age verification and compelled public health labels on adult entertainment websites. Organizations that sued the state of Texas in a federal district court are led by adult industry trade group the Free Speech Coalition (FSC) and the parent companies of tube sites like Pornhub, XVideos and Xnxx. The plaintiffs filed suit in the U.S. District Court for the Western District of Texas in a bid to render House Bill (HB) 1181 unconstitutional on First and Fourth Amendment grounds. Senior U.S. District Judge David Alan Ezra granted the plaintiffs a preliminary injunction blocking the law on August 31. However, counsel representing the Texas government appealed the order to the Fifth Circuit Court of Appeals and was successful in obtaining an administrative stay on the preliminary injunction, allowing House Bill 1181 to enter force. A panel for the Fifth Circuit will hear the appeal, prompting the amicus brief from the ACLU, which features other groups. ACLU is joined by the Center for Democracy & Technology, the Electronic Frontier Foundation, the Foundation for Individual Rights and Expression, the Media Coalition Foundation, and think tank TechFreedom. High-profile First Amendment litigator Robert Corn-Revere is the counsel of record for the amicus brief. According to an analysis of the filing by Bloomberg Law, the state of Texas filed a motion of opposition with the court asking it to bar the ACLU and these organizations from filing an amicus brief in support of the plaintiffs, but the motion was not granted. The key argument in the filing is that age verification is an infringement on the First Amendment rights of adults who are consensually accessing online pornography. Another key argument in the filing is that Texas is bucking case law by compelling certain forms of speech that don’t meet the long-standing Zauderer test on commercial speech. “Civil liberties groups have submitted a barn-burner of an amicus brief in [the Free Speech Coalition’s] case against Texas, saying the HB 1181 is deeply flawed and unconstitutional and threatens to rob people of anonymity online,” posted Mike Stabile in a post to his followers on X (formerly Twitter). Stabile is the director of public affairs for the FSC. “We may be under attack, but we have powerful allies,” he added. The ACLU was recently successful in urging a federal district court in nearby Arkansas to block a social media age verification law. The case is Free Speech Coalition et al v. Colmenero et al and is on appeal at the Fifth Circuit.