Appellate court upholds Texas' right to protect children from online porn

Court stresses right of government to protect children from explicit material

The U.S. Court of Appeals for the Fifth Circuit upheld the right of the State of Texas to obligate so-called “adult entertainment” websites to verify the age of those accessing their material.

Unlike the lower court, the appellate court found that the requirement did not violate the free speech rights of the website owners nor of those employed by them, because the government has a valid interest in protecting minors from accessing explicit material:

Applying rational-basis review, 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.

“Adult” sites should be for adults only

House Bill 1181 was signed into law last June by Texas Governor Greg Abbott. It sought to obligate “adult” sites to both verify the age of users and post health warnings on the material they provide. 

In response, the Free Speech Coalition (a trade association for the “adult entertainment” industry) filed a suit, alongside “Jane Doe,” an “adult entertainer,” claiming the new law would violate their free speech rights. The district court judge sided with them, citing privacy concerns regarding age verification (as government-issued identification would be required, and the government could then track the website use by those submitting the identification):

… the law will allow the government to peer into the most intimate and personal aspects of people's lives…

The lower court judge also rejected the requirement for health warnings, saying that they would unconstitutionally compel speech, given that the sites do not agree that the content they disseminate is harmful in the way the State of Texas described:

Texas Health and Human Services Warning: Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function … Exposure to this content is associated with low self-esteem and body image, eating disorders … and other emotional and mental illnesses.

That judge himself weighed in on the health consequences of viewing “adult” content, saying:

The disclosures state scientific findings as a matter of fact, when in reality, they range from heavily contested to unsupported by the evidence.

While conceding that the State of Texas had a legitimate goal to protect children from such material, he noted that internet filters could also achieve this.

Overturned on appeal

Texas' Attorney-General appealed the ruling, and now the Fifth Circuit has ruled two-to-one that requiring sites to use age-verification is, in fact, constitutional. Speaking for the majority, an appellate court judge noted that vendors of “adult” magazines are required to ask for proof of age, and that this has been upheld by the U.S. Supreme Court. Therefore, there is no reason to assume that material on the internet should be treated any differently.

The appellate court also noted that Bill 1181 allows for a variety of age-verification methods including “facial appearance” and “other available information used to infer the user's age,” and therefore the requirements “do not impose any sort of categorically different burden on adults.” Furthermore, sites that illegally retain identifying information can be fined $10,000 for each violation.

Not just Texas

Several other states, including Arkansas, Mississippi, Utah, and Louisiana, already have age-verification laws in place, and other states are poised to pass legislation of their own.

ACLU sides with porn providers

Writing from West Virginia, Rusty Williams of the ACLU warns that a similar law there would create a “surveillance state.”

Under these laws, websites must verify a user's age and identity … This presents numerous threats to users' online privacy and safety.

Williams also warns against any law requiring an “adult” site to be held liable for any damage resulting from the content purveyed:

Some of these laws even allow individuals to sue porn sites for “damages resulting from a minor's access to such material."

In another ACLU response, this time from Indiana, the cost of implementing age-verification measures is raised as a reason not to impose them:

In some cases, companies may decide the financial burden of implementing the requirements outlined … is not worth [it] … The costs … can easily surpass $100,000…

Given that this article cites a figure of 130 million visitors to a certain site per day, in just one state (Utah), it would seem unlikely that a one-time expense of $100,000 will act as a deterrent.

Next stop: school libraries?

Many states have become battlegrounds not only on internet access for children, but also book access, via school libraries. There, too, progressives have brandished the First Amendment, as they insist that children's book selections must not be “policed.”

The Fifth Circuit ruling encourages those in favor of placing limits on the material children can access in their schools, as attorney Jeff Childers of “Coffee and Covid” writes:

Friday's decision also delivered fresh ammunition to parents working to scrape obscene books and pornographic materials out of schools. If the state has a rational, constitutional interest in controlling minors' access to obscene materials on the Internet, how much more obviously rational is the state's interest in protecting kids the very same way in the school library?