Texas anti-porn bill vetted by Fifth Circuit

(CN) — Texas asked a Fifth Circuit panel Wednesday to lift an injunction against a new state law meant to prevent kids from accessing pornography on the internet.

The Lone Star State is one of seven U.S. states to pass bills requiring age verification to access online adult content. And HB 1181 garnered nearly unanimous support — only one Texas lawmaker out of 165 voted against it.

Numerous other state legislatures have proposed similar statutes.

The movement is explained by research that, according to Texas, has suggested early exposure to pornography can make adolescents more likely to abuse tobacco, alcohol and illegal drugs and cause anxiety, insomnia, depression and eating disorders.

Besides age verification, HB 1181 requires adult-content sites to post in 14-point font this advisory on their webpages, “TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography is biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses and weakens brain function.”

Another required notice from the same agency says, “Pornography increases the demand for prostitution, child exploitation and child pornography.”

Adult site owners must also post a national hotline number for people with mental health problems on every webpage, the bill’s opponents say.

Noncompliance is costly: Website operators can be fined up to $250,000 if a minor accesses sexual material because the company violated the age-verification rules.

The Free Speech Coalition, an adult entertainment trade association and a group of porn publishers, including producers from Romania, Cyprus, the Czech Republic and Florida, sued Texas’ attorney general over the bill in early August.

Senior U.S. District Judge David Ezra, a Ronald Reagan appointee, blocked it with a preliminary injunction on Aug. 31, the day before it was set to go into effect.

Texas appealed and a panel of the conservative Fifth Circuit stayed Ezra's order on Sept. 19, allowing the law to take effect temporarily.

He agreed with the plaintiffs that HB 1181 violates the First Amendment by forcing websites to speak Texas’ preferred messages — the health advisories that he determined were “somewhat deceptive” because the state had not shown its Health and Human Services Commission had made medical findings to back the claims.

The age verification is also problematic, Ezra found, since although the bill imposes fines for retaining verifying information, such as driver’s license data, there is a risk of accidental disclosures, hacks and leaks.

Ezra also rejected Texas’ contention that foreign porn producers lacked standing. He decided they should enjoy free-speech protections for their conduct in the U.S.

And Section 230 of the Communications Decency Act of 1996 is another defense, Ezra determined, as it protects website owners from liability for content published by third parties. But he said it does not apply to some of the plaintiffs who produce their own content.

In the appeal hearing Wednesday, John Ramsey, a Texas assistant attorney general, told a three-judge panel of the Fifth Circuit that Ezra had clearly misunderstood how age verification works.

“The district court asserted that age verification will allow the government to log and track down what pornographic videos a person watches,” Ramsey said. “And the ruling even suggests porn sites will be required to transmit user data to the state.”

U.S. Circuit Judge Jennifer Walker Elrod jumped in: “I thought they weren’t supposed to keep the data.”

“That’s exactly right, your honor,” Ramsey replied.

Representing the website operators, Derek Shaffer with the Washington office of Quinn Emanuel Urquhart & Sullivan said Supreme Court precedent in Reno v. ACLU and Ashcroft v. ACLU, opinions issued in 1997 and 2002, respectively, established that HB 1181 is subject to strict scrutiny.

That standard comes into play when laws infringe on fundamental rights and requires legislation to be narrowly tailored and the least restrictive means to further a compelling government interest.

He said the high court had used that standard in those cases wherein it found provisions of the Communications Decency Act meant to protect minors from receiving obscene messages or materials on the internet were First Amendment free speech infringements.

It also invoked the standard in striking down the Child Online Protection Act of 1998, another statute aimed at preventing minors from accessing pornography.

Shaffer said the Supreme Court in that litigation specifically named content filtering as a least restrictive alternative to the anti-obscenity measures and noted that Texas lawmakers had provided no explanation as to why they had considered filtering and found it wanting.

“In addition, content filtering puts the responsibility where it should be, in the home and on parents,” Shaffer said.

Elrod, a George W. Bush appointee, noted that many parents are not adept at using filters.

Undeterred, Shaffer said instead of the health warnings mandated by HB 1181, the Texas Legislature should try to educate parents about content filtering through public relation campaigns and provide it to those who need it.

Ramsey said it is clear content filtering is not working because it has been the status quo method to try and stop kids from watching online porn for the past 20 years.

Yet, he added, surveys show 75% of teens have viewed porn and the average age of exposure is 13.

As for alleged pitfalls of age verification, Ramsey said Pornhub, one of the most viewed adult sites — it had 42 billion visitors in 2019 — and other companies represented by the plaintiff Free Speech Coalition already verify the ages of users in Louisiana, Germany and other places around the world.

U.S. Circuit Judge Jerry Smith and Senior U.S. Circuit Judge Patrick Higginbotham, both Reagan appointees, were also on the panel.

The judges did not say when they would rule on the appeal.

After the hearing, they gave their blessing for Texas to continue enforcing the law with a Nov. 14 order staying Ezra's injunction pending their decision in the case.

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