Texas law requiring age verification on porn sites violates First Amendment, federal judge rules

---

A federal judge struck down a Texas law that would require age verification and health warnings on pornographic websites, arguing that the law violated the First Amendment and was overbroad and vague.  

Key Players

Jane Doe, an anonymous adult entertainer, filed the lawsuit along with the Free Speech Coalition, a trade association for the adult film industry.

Angela Colmenero has served as the interim attorney general of Texas since July 2023.

Further Details

The law sought to prevent minors from accessing adult content by requiring sites to verify a user’s identity and display health warnings about pornography consumption. If a minor accessed a site, each  violation could result in a $10,000 fine or $250,000 total. Louisiana, Virginia, Mississippi, Utah, Arkansas, and Montana have all passed similar laws instituting age verification for pornographic websites, the Washington Examiner reported.

In May 2023, the law passed 133-1 in the Texas house and unanimously in the state senate. On June 12, Gov. Greg Abbott (R) signed it into law. It was scheduled to take effect on Sept. 1. 

On Aug. 4, Doe and the Free Speech Coalition filed a lawsuit against Texas, arguing the law would be ineffective because of how easily it could be circumvented by a virtual private network (VPN) or certain browsers. The suit also argued that the law posed a major risk to the privacy of adult users, whose information could potentially be leaked to the public, and it argued that the law violated the First Amendment, the due process clause of the 14th Amendment, and the excessive fines clause of the Eighth Amendment. Further, the suit claims that Section 230, originally part of the Communications Decency Act, protects sites from being liable for content posted by users.

In response, Colmenero argued that Texas has an interest in preventing children from accessing pornography that far outweighs any material cost to the plaintiffs. She said there were no grounds to sue because of the obscenity of the content and because some of the plaintiffs were foreign companies. 

Outcome 

Judge rules law unconstitutional 

On Aug. 31, U.S. District Judge David Ezra, nominated by former President Ronald Reagan, issued a preliminary injunction blocking the law from going into effect, finding it violated the First Amendment and was overly vague. 

Ezra wrote that age verification “is constitutionally problematic because it deters adults’ access to legal sexually explicit material, far beyond the interest of protecting minors.” Ezra also took issue with age verification through government-issued IDs, writing that since the government was not required to delete data regarding access, the law, in effect, forces individuals to divulge extremely private information about their sexuality to the state government in order to access legal speech, noting that this was particularly concerning in a state that has still not repealed its ban on sodomy. 

The judge mostly agreed with the plaintiffs on their Section 230 claims, writing that it applied to websites based overseas, as well as sites that only host user content. Ezra did acknowledge that the state had a legitimate interest in blocking children from online sexual material. However, he cited other methods, including blocking and filtering software, that could fulfill this interest without infringing on adults’ constitutional rights. 

Ezra also took issue with the health warning requirement, which he said compelled companies to use speech they disagree with. He also objected to the wording of the warnings, stating, “The disclosures state scientific findings as a matter of fact, when in reality, they range from heavily contested to unsupported by the evidence.”

Colmenero indicated she would appeal the ruling.

Similar laws in other states face mixed results

The other states that have passed similar laws have received different results to challenges. Per The Associated Press, a federal judge upheld the Utah law, while the Arkansas law was struck down. The Utah law was upheld because the enforcement mechanism involves residents suing the companies, and since the state was not involved, a pre-enforcement injunction cannot be issued.

The Arkansas law was struck down because exemptions to the law for YouTube, Google, LinkedIn, or other platforms that generate less than $100 million a year in revenue nullify the law’s intent.