Court Kills Motion to Stay Texas AV Case in Bid for SCOTUS Appeal

AUSTIN, Texas—The U.S. Fifth Circuit Court of Appeals has denied a motion to stay Texas' controversial age verification law, House Bill (HB) 1181, targeting adult websites. In the case of Free Speech Coalition et al v. Paxton, counsel for the adult industry trade organization and its co-plaintiffs signaled their intent earlier this week to appeal a recent ruling by the federal appeals court that found age verification constitutional and the health labeling requirements of HB 1181 unconstitutional. A split panel of three judges, 2-1, on Friday denied the motion to stay, meaning that House Bill 1181 can continue to be enforced by Texas Attorney General Ken Paxton during ongoing litigation.  "The motion was denied this morning, meaning Texas can continue to enforce its law for the time being," reads a statement posted Friday afternoon to the  Free Speech Coalition blog. "Despite the rulings of the 5th Circuit, we believe in our case, and will continue to fight for the rights of our members, our industry, our workers and the right of adult Texans to access legal and constitutionally protected speech without the interference of the government." In the blog post, FSC points to a dissent filed by one of the three judges hearing the case. Judge Patrick Higginbotham, an appointee of late Republican President Ronald Reagan, published his dissent to the docket.  "I respectfully dissent from the majority’s decision to deny Appellees’ unopposed motion to stay the mandate pending appeal and disposition of its petition for writ of certiorari," Higginbotham wrote. "The substantial question of law here presented begs for resolution by the high court." He points out that the decision to rule age verification legislation as constitutional "conflicts with Supreme Court precedent and decisions of our sister circuits." "And I would stay the mandate because Appellees face a risk of enforcement proceedings under the likely unconstitutional statute," he argued, alluding to the precedent in case law that shows age verification in the format of Texas House Bill 1181 as unconstitutional and potentially a violation of the First Amendment. If accepted, an appeal to the Supreme Court could be resolved by the summer. Nevertheless, litigation is ongoing. With the Fifth Circuit's denial of the motion to stay and the split court's recent ruling on HB 1181, Attorney General Paxton has proceeded to enforce the civil penalties of the law against the parent companies of Pornhub, xHamster and Chaturbate.  Aylo, the parent company of Pornhub, is party to the lawsuit filed against Attorney General Paxton and the state of Texas.