NGOs File Briefs for Adult Industry in Texas AV SCOTUS Case

WASHINGTON—The Electronic Frontier Foundation, the Woodhull Freedom Foundation, and TechFreedom have filed an amicus brief supporting the Free Speech Coalition in the trade group's case challenging the constitutionality of Texas House Bill (HB) 1181. HB 1181 is Texas' highly controversial age-verification statute.  A trade group representing the adult entertainment industry, the Free Speech Coalition, and the parent companies of some of the world's largest adult websites, sued the state of Texas and far-right Republican Attorney General Ken Paxton, a devout anti-pornography advocate, to block the enforcement of House Bill 1181. After a sordid history through the federal judicial system, the coalition managed to appeal to the U.S. Supreme Court successfully to take up the landmark free speech case. The American Civil Liberties Union (ACLU) and the ACLU of Texas took up the Free Speech Coalition's case alongside attorneys for Quinn Emanuel Urquhart & Sullivan and Webb Daniel Friedlander.  “By requiring invasive age verification, this law chills protected speech and violates the rights of consenting adults to access lawful sexual content online," said Ricci Levy, the chief executive officer of Woodhull Freedom Foundation. The groups filed to voice their concern that age verification laws specifically targeting adult entertainment websites are anti-First Amendment and violate various legal precedents established previously by the Supreme Court. Attorneys of record for the amicus brief include adult industry veterans Corey Silverstein of Silverstein Legal and Lawrence Walters of Walters Law Group. Kevin Toll, counsel for Silverstein Legal, was also added to the case that includes attorneys for the Electronic Frontier Foundation led by Aaron Mackey. Levy added, "We support protecting children from inappropriate content, but this must be achieved through less intrusive means that preserve the rights of adults." Silverstein and Walters told AVN in comments that they're thrilled to aid the Free Speech Coalition by working with these organizations. "It’s my honor to be part of the legal team assembled to represent organizations that have dedicated themselves to the protection of free speech," said Silverstein. Walters added, "This is the most consequential case for the adult entertainment industry in recent history and will be a critical decision impacting First Amendment rights. I’m thankful to be part of the stellar legal team that drafted the brief and remain hopeful for a positive outcome." Brad Mitchell, owner of MojoHost, fronted the money for the amicus brief. Mitchell said in a statement, "I have tremendous faith in the wisdom of SCOTUS to determine the unconstitutionality of HB 1181 and to have the courage to strike down this bad legislation." Silverstein and Walters were involved in an amicus brief filed in support of the Free Speech Coalition's petition for a writ of certiorari asking the high court to hear the case. EFF and Woodhull were represented in that amicus brief.  Other organizations that filed in support of that petition include the Foundation for Individual Rights and Expression, the International Centre for Missing & Exploited Children, and a coalition of comic book and literary publishers. These same organizations, including many First Amendment academics and other civil society organizations, have filed amicus briefs in support of the Free Speech Coalition's first official brief debating the merits of HB 1181. Some of the names listed in the amicus briefs feature the National Coalition Against Censorship, online sex education platform O.school, "privacy-first" age verification provider Atsign, Inc., the libertarian Cato Institute, the Internet Society, and the Institute for Justice. The U.S. government also filed an amicus brief urging the high court to vacate the case. Elizabeth Prelogar, the U.S. solicitor general, argued in the amicus brief that this case be remanded back to the U.S. Fifth Circuit Court of Appeals with the high court telling the appeals court to apply strict scrutiny on HB 1181.   One of the central issues in the Free Speech Coalition's appeal is that the notoriously conservative Fifth Circuit in New Orleans only applied a rational basis review of the First Amendment implications.   It is standard operating procedure for courts to apply strict scrutiny, which requires a higher burden of proof, for the state to justify why it has a vested interest in regulating otherwise First Amendment-protected speech in such a manner.   "The court of appeals therefore erred in applying only rational-basis review, and this court should follow its usual practice by vacating the decision below and remanding to allow the court of appeals to apply the proper standard in the first instance," Prelogar argued via the amicus brief.   "In so doing, however, the court should make clear that the First Amendment does not prohibit Congress and the states from adopting appropriately tailored measures to prevent children from accessing harmful sexual material on the internet—potentially including age-verification requirements analogous to those that have long been applied to the distribution of such material in the physical world."   Prelogar points to efforts in Congress to adopt legislation that would regulate age verification at the federal level. These examples include the Kids Online Safety and Privacy Act (KOSPA; a combined law of the controversial Kids Online Safety Act and COPPA 2.0).   Amicus briefs in support of Texas have not yet been filed at the time of this writing.   The Age Verification Providers Association (AVPA) told AVN in a previous report that it intends to file a brief in support of HB 1181. Iain Corby, AVPA's executive director, specifically said: "We are drafting a brief to help justices who may be unfamiliar with the simplicity of the latest available methods of age assurance to understand the user experience, the range of options open to consumers, and the latest cryptographic mechanisms that can be deployed to maintain anonymity."