By: Sophie Ossip
On August 31, 2023, U.S. District Judge David Ezra declared a Texas online-age requirement bill unconstitutional in Free Speech Coalition, Inc. v. Colmenero.[1] The Texas Attorney General’s Office appealed to the Fifth Circuit and a three-judge panel took up the case on October 4, 2023.[2] The bill required businesses that host adult content online, from pornography to some sexual health materials, to verify its users’ age and post disclaimers with language outlined in the bill.[3] The Fifth Circuit’s opinion will affect the future of online age requirements and how states can regulate businesses’ speech on their websites.
The plaintiffs, in this case, are the Free Speech Coalition[4] along with several businesses that produce, sell, and license adult content online.[5] The companies sued the state of Texas, alleging that the bill violates the First Amendment’s right to free expression by compelling government-mandated speech. [6] The court agreed and applied strict scrutiny, reasoning that the bill compels businesses to speak the government’s preferred messages.[7] The court also explained that Texas failed to show the bill’s requirements would reduce minors’ exposure to harmful online content in the least restrictive manner.[8]
Texas House Bill 1181 contains two requirements.[9] First, the bill requires businesses to use “reasonable age verification methods” to verify the user is eighteen years or older. [10] Second, the bill requires warnings that state the alleged harmful effects of adult content sites.[11] The bill requires the disclaimers to use specific language, such as, “Pornography is potentially biologically addictive, is proven to harm human brain development” and “Exposure to this content is associated with low self-esteem.”[12]
The Fifth Circuit will likely affirm the lower court’s decision and apply similar reasoning for striking down the law. The most persuasive reason the district court used is that the bill forces businesses to make compelled speech, which violates the First Amendment.[13] The Supreme Court has consistently held that the First Amendment protects the right to refrain from speaking as well as the right to speak freely.[14]
An online-age requirement law is likely unconstitutional when: 1) the law requires businesses to post disclaimers based on the government’s opinion[15]; 2) the law does not narrowly define the restrictions and who the law applies to[16]; 3) the law does not use the least restrictive means available to achieve the governmental objective;[17] and 4) the government does not meet its burden of showing the law will achieve the governmental objective.[18]
The specific disclaimer requirement in the Texas bill will likely never pass constitutional muster because it is government-compelled speech.[19] When the government compels individuals to speak the government’s message, strict scrutiny is applied, and the government must prove there is no less speech restrictive alternatives.[20] To avoid constitutional challenges, the bill should allow businesses to determine their age verification methodology and disclaimer language.[21]
The bill does not narrowly define the restrictions imposed on businesses or what businesses are held liable.[22] The bill defines “sexual material harmful to minors” as material that the average person would find harmful and designed to appeal to “the prurient interest.”[23] The bill applies to commercial entities that publish or distribute more than “one-third” of sexual material harmful to minors.[24] The “one-third” language exempts a large subsect of businesses, such as social media sites that have entire forums dedicated to posting pornography.[25] The bill also exempts foreign websites.[26] The bill should target the individual page or subdomain, rather than websites as a whole, to be narrowly tailored towards the purpose of protecting minors.[27]
The bill’s age verification requirement is not the least restrictive means available to protect minors from harmful sexual content.[28] There are less restrictive means that do not require adults to identify themselves or provide personal information.[29] Finally, the Texas government was unable to meet its burden of showing the age requirement was the less restrictive means of achieving the goal of protecting minors.[30]
Texas is part of a growing trend of states that have recently adopted measures requiring age verification checks on adult content websites and social media platforms.[31] These laws are part of an effort to make the internet safer for children, yet questions arise regarding these laws’ restrictions on speech and their harmful interference with business.[32] Further, there is little data on whether these laws are effective in achieving their governmental purpose.[33]
Among the states that have passed age verification laws, the volume of customers visiting adult content websites has dropped dramatically.[34] The age verification laws do little to protect minors from harmful content while potentially deterring adult users from accessing websites.[35]
Although state legislatures may adopt similar laws that prevent minors from accessing explicit content, courts will likely continue to bar them as unconstitutional.[36] The Fifth Circuit’s ruling will help resolve whether Texas’s bill, like other state laws, is narrowly defined and the best means of protecting minors from harmful online content.[37]
[1] See Free Speech Coal.n, Inc. v. Colmenero, 2023 U.S. Dist. LEXIS 154065 at *24 (W.D. Tex.).
[2] See Cameron Langford, Texas anti-porn bill vetted by Fifth Circuit, Courthouse News Serv. (Oct. 4, 2023), https://www.courthousenews.com/texas-anti-porn-bill-vetted-by-fifth-circuit/#:~:text=(CN)%20%E2%80%94%20Texas%20asked%20a,to%20access%20online%20adult%20content; Ken Miller, Texas law requiring age verification to view pornographic websites will not go into effect, federal judge says, PBS News (Sept. 1, 2023, 12:00 PM), https://www.pbs.org/newshour/nation/texas-law-requiring-age-verification-to-view-pornographic-websites-will-not-go-into-effect-federal-judge-says.
[3] See generally H.B. 1181, 88th Leg., (Tex. 2023); Ken Miller, Texas law requiring age verification to view pornographic websites will not go into effect, federal judge says, PBS News (Sept. 1, 2023, 12:00 PM), https://www.pbs.org/newshour/nation/texas-law-requiring-age-verification-to-view-pornographic-websites-will-not-go-into-effect-federal-judge-says.
[4] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *4 (explaining that the Free Speech Coalition is a nonprofit trade association of adult content performers, producers, distributors, and retailers).
[5] See id. at *24.
[6] See id. at *7.
[7] See id., at *4; Langford, supra note 2.
[8] See id., at *4; Langford, supra note 2.
[9] See Free Speech Coal. 2023 U.S. Dist. LEXIS 154065, at *7.
[10] See H.B. 1181, 88th Leg., (Tex. 2023).
[11] See id.; Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *7.
[12] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *7.
[13] See id., at *57.
[14] See id. (citing Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2463 (2018)).
[15] Cong. Rsch. Serv., LSB11022, Online Age Verification (Part III): Select Constitutional Issues (Aug. 17, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB11022.
[16] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *58.
[17] See id.
[18] See id.
[19] See, e.g., at *48. See, e.g., Nat’l Inst. Of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (holding a law unconstitutional that required clinics to provide a government-drafted script about the availability of state-sponsored services because it altered the content of businesses’ speech).
[20] See Cong. Rsch. Serv., LSB11022, First Amendment Limitations on Disclosure Requirements (Apr. 26, 2023), https://crsreports.congress.gov/product/pdf/IF/IF12388#:~:text=These%20disclosure%20requirements%20are%20often,government’s%20ability%20to%20compel%20speech.
[21] See Marc Novicoff, A Simple Law Is Doing the Impossible. It’s Making the Online Porn Industry Retreat, Politico(Aug. 8, 2023, 4:30 AM), https://www.politico.com/news/magazine/2023/08/08/age-law-online-porn-00110148.
[22] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065 at *27 (holding that the bill’s language was too broad to meet the “narrowly tailored” requirement under strict scrutiny).
[23] See H.B. 1181, 88th Leg., (Tex. 2023); Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *24, 27 (explaining that the bill regulates virtually all inappropriate material since most sexual content is offensive and prurient to young minors).
[24] See id. (defining commercial entity as a corporation, limited liability company, partnership, limited partnership, sole proprietorship, or other legally recognized business entity).
[25] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *28 (reasoning that the bill de facto exempts social media sites like Reddit, which has subreddits dedicated to posting pornography, but the content does not make up one-third of the entire website).
[26] See id. (explaining that foreign websites are not subject to personal jurisdiction in Texas, leaving minors with access to pornography if foreign websites host it).
[27] See id. at *29 (reasoning that the law’s under-inclusivity makes the bill ineffective at reducing minors’ access to readily available pornography).
[28] See id. at *40.
[29] See id. (explaining that there are less restrictive means, such as blocking and filtering software, that do not require obtaining personal information).
[30] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *57 (explaining that the Texas legislature did not present evidence or even consider the least restrictive means).
[31] See generally S.B. 287, 2023 Leg., 262nd Sess. (Utah 2023); H.B. 142, 2022nd Sess. (La. 2022); see Jeff Tavss, Judge dismisses lawsuit challenging Utah porn site age-verification law, Salt Lake Trib. (Aug. 2, 2023, 8:22 AM),https://www.sltrib.com/news/politics/2023/08/01/judge-dismisses-lawsuit/#:~:text=U.S.%20District%20Court%20Judge%20Ted,it%20will%20appeal%20the%20decision; Kevin McGill, Judge tosses challenge to Louisiana’s age verification law aimed at porn websites, AP News (Oct. 4, 2023, 7:02 PM), https://apnews.com/article/porn-lawsuit-age-verification-louisiana-bbdf1afdc5c09feb104fe4199e20c22d.
[32] See Andrea Vittorio, Porn Industry Group Wins Pause of Texas Online Age Check Law (3), Bloomberg L. (Aug. 31, 2023, at 2:59 PM), https://news.bloomberglaw.com/privacy-and-data-security/porn-industry-group-stops-texas-from-implementing-age-check-law.
[33] See Langford, supra note 2.
[34] See Novicoff, supra note 21 (explaining that the volume of users visiting Pornhub has dropped eighty percent in Louisiana and entirely stopped operating in Utah, Mississippi, and Virginia).
[35] See Free Speech Coal., 2023 U.S. Dist. LEXIS 154065, at *41 (holding that the restriction “deters adults’ access to legal sexually explicit material, far beyond the interest of protecting minors”); ACLU v. Ashcroft, 322 F.3d 240, 259 (3rdCir. 2003) (explaining that many adults may be unwilling to provide identification information to gain access to online content and fear providing personal information).
[36] See id.
[37] See id., at *58.
