Texas can enforce law requiring age verification systems on porn websites, U.S. Court of Appeals for the 5th Circuit ruled Thursday. The appeals court overturned an injunction against the law’s age verification requirement, but said Texas cannot enforce a provision requiring porn websites to “display health warnings about the effects of consuming pornography.”
In a 2-1 decision, justices ruled that “the age verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography. Therefore, the age verification requirement does not violate the First Amendment.” “
The Texas law was challenged by the owners of Pornhub and other adult websites and an adult industry lobby group called the Free Speech Coalition. “We strongly disagree with the Court’s majority analysis,” the Free Speech Coalition said said. “As Justice (Patrick) Higginbotham’s dissent makes clear, this ruling violates decades of Supreme Court precedent.”
A judge of an American court issued a preliminary injunction blocking enforcement of the law in August 2023, find that “Plaintiffs have demonstrated that their First Amendment rights are likely to be violated if the statute takes effect, and that they will suffer irreparable harm absent an injunction.”
But a few weeks later, the 5th Circuit issued a temporary stay, putting the law into effect in September 2023. Last week’s new ruling concerned the merits of the preliminary injunction.
Court cites precedent from journal
The 5th Circuit, widely considered one of the most conservative appellate courts, ruled that Texas’ porn site law should be reviewed on its “rational basis” and not under strict scrutiny. The majority of the court panel pointed this out Ginsberg v. New Yorka 1968 Supreme Court ruling pronunciation about selling “girls’ magazines” to a 16-year-old at a lunch counter. The Supreme Court in that case upheld a New York criminal obscenity statute that prohibited the knowing sale of obscene material to minors.
The same principle applies to the Internet, the 5th Circuit majority found. “Because it is never clear whether an Internet user is an adult or a child, any attempt to identify the user will somehow implicate adults… It would be so difficult to suggest that protecting children is so difficult would be. Ginsbergwhere a basic rational assessment was sufficient even adults would probably have to identify themselves to buy girls’ magazines,” the ruling said.
Like Eric Goldman, law professor at Santa Clara University wrotethe majority of the 5th Circuit panel claims the 56-year-old Ginsberg opinion, which covered offline retailers, governs the Conlaw (constitutional law) analysis of Texas law rather than the downright on-point 1997 Reno v. ACLU and 2004 Ashcroft v. ACLU opinions, both of which were about the Internet.”
In his dissent, Justice Higginbotham said the majority is trying to draw distinctions Ginsberg from later statements ‘are not convincing’. Although “Ginsberg remains good law and undoubtedly recognizes the power of government to protect children from age-inappropriate materials.”
The Texas law “restricts access to material that may be denied to minors, but adult speech remains constitutionally protected,” Higginbotham wrote. “It follows that the law should be closely monitored because it restricts adults’ access to protected speech through a content-based distinction – whether that speech is harmful to minors.”
Section 230 Analysis is Flawed, Says Professor
The majority of the 5th Circuit panel ruled that Section 230 of the Communications Decency Act does not preempt Texas law. Goldman called the decision “another entry in the Fifth Circuit’s increasingly unstable Section 230 case law.”
Goldman said judges appear to be saying “that the age authentication mandate only regulates the conduct of the services, and thus does not impose liability for third-party content… But fundamentally, the statute imposes liability on third-party publishing services.” party content to underage viewers, and Section 230 should clearly apply to that aspect.”