AUSTIN, Texas (CN) — A federal judge on Thursday handed a preliminary injunction to a group of porn-industry insiders who had sued Texas over a new state law mandating content warnings on porn sites.
The court fight is just the latest First Amendment dispute stemming from efforts this year by Texas lawmakers to limit free expression they deem obscene. In Houston, a similar lawsuit is playing out over new state restrictions on drag shows. Booksellers are also suing the state over a new rules on allegedly explicit books.
Before the injunction, House Bill 1181 was set to go into effect on Friday. The law would have required online hosts of adult content to perform "digital identification" on web traffic to ensure children weren't accessing pornography. It would have also required hosts to provide dubious "sexual materials health warnings" to consumers, including controversial claims that pornography "weakens brain function," "is potentially biologically addictive" and is linked to eating disorders and other mental-health issues.
Enter the Free Speech Coalition and a group of porn publishers, which earlier in August sued Angela Colmenero, the interim attorney general of Texas, to block enforcement of the law. Texas currently lacks a permanent attorney general as the state awaits the upcoming Senate impeachment trial of longtime AG Ken Paxton, who in May was impeached by a wide margin in the state House over allegations of corruption and abuse of power.
Founded in 1991, the Free Speech Coalition is a "trade association of the adult entertainment industry" that fights "social stigma, misinformation, and discriminatory policies" towards the industry, according to its website. The group is a successor of the Adult Film Association of America, which dissolved in 1992 after merging with the Free Speech Legal Defense Fund.
In their original complaint, the Coalition and other plaintiffs argued HB 1181 was part of a "long tradition of unconstitutional — and ultimately failed — governmental attempts to regulate and censor free speech on the internet."
They argued HB 1181 violated the U.S. Constitution in a variety of ways, including by requiring websites to publish speech that is "a mix of falsehoods, discredited pseudo-science, and baseless accusations." They also argued the bill ran afoul of Section 230, a longstanding standard in the Communications Decency Act that prevents holding website operators responsible for user-provided content.
The required health warnings were a "classic example of the State mandating an orthodox viewpoint on a controversial issue," the lawsuit argued. "Texas could easily spread its ideological, anti-pornography message through public service announcements and the like without foisting its viewpoint upon others."
The plaintiffs include an eclectic mix of porn-industry insiders, including porn production companies from Cyprus, Romania, the Czech Republic and Florida. Among them is also at least one porn performer: an anonymous Oregon resident who feared the law would harm "their ability to reach their audience."
In a statement on Thursday, the Free Speech Coalition celebrated the ruling, calling it a "huge and important victory against the rising tide of censorship online."
HB 1181, the statement added, had been based not on "science or technology, but ideology and politics."
"From the beginning, we have argued that the Texas law, and those like it, are both dangerous and unconstitutional," Alison Boden, executive director for the group, said in a statement. "We’re [pleased] that the Court agreed with our view that HB1181’s true purpose was not to protect young people, but to prevent Texans from enjoying First Amendment protected expression."
It was a complex case, with U.S. District Judge David Alan Ezra, a Reagan appointee, spending around 80 pages digging into the constitutional, privacy and communications questions raised by the new Texas law. He ultimately found the plaintiffs were entitled to an injunction, including because they would face "substantial" harms if the law went into effect.
The law allowed for fines of $10,000 per day for websites who did not verify customer ages — but commercial age-verification services "are costly, even prohibitively so," Ezra noted.
The Texas attorney general's office had argued foreign-porn producers involved in the case did not have standing to sue — but these plaintiffs were not seeking any "extraterritorial" rulings and instead simply wanted to "exercise their First Amendment rights only as applied to their conduct inside the United States," Ezra wrote. Besides, he noted, several of the plaintiffs, including the Jane Doe performer from Oregon, were in fact U.S. residents who were entitled to test constitutional claims in court.
Ezra took particular issue with the content and format of the warnings, which would have required publishers to post a variety of messages, including the number for a hotline run by the Substance Abuse and Mental Health Services Administration.
The law required such warnings to be in 14-point font, but "text size on webpages is typically measured by pixels, not points," Ezra noted — raising valid concerns the law was overly burdensome and ambiguous. The rules would have forced porn publishers to devote a significant amount of web page space to purported public health warnings, but "the warnings themselves are somewhat deceptive."
However, Ezra did give the plaintiffs some pushback over their interpretation of Section 230 — the section of the Communications Decency Act that gives Facebook, for example, legal immunity over illegal posts.
Section 230 should protect porn websites from liability from third parties, Ezra said — but in this case, some porn producers involved in the suit did in fact produce their own content and were therefore not protected from Section 230 immunity. Still, he partially granted the injunction on these grounds as well, noting that "certain Plaintiffs are likely to succeed on the Section 230 claims."
The Texas attorney general's office did not respond by press time to a request for comment on the case, including to say whether it planned to appeal the ruling.
Follow @stephentpaulsen
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