Appeals Court Ruling Puts Tenn. Age-Verification Law into Effect

In the order, the Sixth Circuit panel wrote that their “initial review suggests that the district court’s First Amendment analysis was lacking, so we grant the stay.”

“Tennessee’s law seeks to protect children from the devastating effects of easy access to on-demand pornography,” the panel wrote, asserting that these effects are “well-documented” and include “social disengagement, increased delinquency, mental health and body-image difficulties (especially for girls), riskier and earlier sexual behaviors and increased transmission of sexually transmitted diseases, increased objectification of women and stereotyping, and greater likelihoods of committing and suffering sexual violence.”

In the order, the panel quoted at some length the New York Times article “Children of Pornhub” by Nicolas Kristof in support of the court’s opinion that the alleged harms on children from exposure to online pornography “shouldn’t be a surprise.”

“One celebrated investigation of a leading pornography site found the site ‘infested with rape videos’ and described how it ‘monetizes child rapes, revenge pornography, spy cam videos of women showering, racist and misogynist content, and footage of women being asphyxiated in plastic bags,’” the court wrote. “And that barely even scratches the surface.”

The Sixth Circuit wrote that Tennessee passed the PTMA to “stem the flow of this toxic content to minors.”

In rejecting the lower court’s First Amendment analysis, the panel asserted that “even assuming the district court was correct in applying strict scrutiny, it still did not establish that the unconstitutional applications of the PTMA outweigh the constitutional ones.”

“A facial challenge requires a court to ‘determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other.’ The district court did not do so. It briefly acknowledged that the statute directly targets pornography, but it made no effort to determine whether the constitutional applications of the law – e.g., requiring pornography websites to verify users’ ages – substantially outweighed by the unconstitutional applications of the law. In fact, the only potential impermissible applications it cited were Plaintiffs’ hypothetical violations of the PTMA – the phrase ‘the human nipple,’ the emoticon ‘(o)(o),’ or a cartoon rendering of a breast. Instead, the district court concluded that the unconstitutional applications of the PTMA must, by definition, outweigh the constitutional ones because the PTMA requires age-verification for any website if one-third of its content is harmful to minors, even if the other two-thirds is not. As the Supreme Court has long made clear, most recently in Hansen and NetChoice, a facial-challenge analysis requires more.”

The panel also faulted the plaintiffs for failing to “make any attempt to explain what content that is not harmful to minors – besides their hypotheticals – would be age-restricted under the PTMA.”

“Instead, they now adopt the district court’s reasoning that ‘the PTMA captures more protected speech than it does unprotected speech by its own terms, as even websites that are mostly comprised of content that is not harmful to minors must pay to verify the ages of their visitors.’ But this circular logic does not satisfy Plaintiffs’ ‘burden of demonstrating… substantial overbreadth’ relative to its plainly legitimate sweep.”

“Given Plaintiffs’ failure to carry their burden, and the district court’s failure to recognize that, General Skrmetti has shown that the district court likely erred in concluding that the PTMA is facially unconstitutional,” the Sixth Circuit wrote.

The panel also noted in the order that “other circuits (and the Supreme Court) have let similar state laws go into effect,” adding that when the Supreme Court granted certiorari in the Texas case, Free Speech Coalition v. Paxton, “it declined to block Texas’s law pending appeal.”

“We see no reason to keep Tennessee’s law on ice while Texas and Indiana may enforce theirs,” the panel added.

In a statement issued yesterday, the FSC said “Adult businesses should be aware that the state’s attorney general could begin enforcing the law, effective immediately. Additionally, the law permits residents of Tennessee to bring a private cause of action, or civil suit, against sites with ‘material harmful to minors.’”

You can read the full text of the Sixth Circuit’s order here. The U.S. Supreme court is scheduled to hear oral arguments in Free Speech Coalition v. Paxton tomorrow, January 15.

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