Texas can enforce a law requiring age-verification systems on porn websites, the US Court of Appeals for the 5th Circuit ruled Thursday. The appeals court vacated an injunction against the law's age-verification requirement but said that Texas cannot enforce a provision requiring porn websites to "display health warnings about the effects of the consumption of pornography."
In a 2-1 decision, judges 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 disagree strenuously with the analysis of the Court majority," the Free Speech Coalition said. "As the dissenting opinion by Judge [Patrick] Higginbotham makes clear, this ruling violates decades of precedent from the Supreme Court."
A US District Court judge issued a preliminary injunction blocking enforcement of the law in August 2023, finding that "Plaintiffs have shown that their First Amendment rights will likely 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 that allowed the law to take effect in September 2023. The new ruling issued last week was on the merits of the preliminary injunction.
Court Cites Magazine Precedent
The 5th Circuit, generally regarded as one of the most conservative appeals courts, found that the Texas porn-site law should be reviewed on the "rational-basis" standard and not under strict scrutiny. The court panel majority pointed to Ginsberg v. New York, a 1968 Supreme Court ruling about the sale of "girlie" 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 materials to minors.
The same principle applies to the internet, the 5th Circuit majority found. "Because it is never obvious whether an Internet user is an adult or a child, any attempt to identify the user will implicate adults in some way... To suggest protecting children would be so difficult is inconsistent with Ginsberg, where rational basis review was sufficient even though adults would presumably have to identify themselves to buy girlie magazines," the ruling said.
As Santa Clara University law professor Eric Goldman wrote, the 5th Circuit "panel majority claims the 56-year-old Ginsberg opinion, which dealt with offline retailers, governs the Conlaw [constitutional law] analysis of the Texas law instead of the squarely on-point 1997 Reno v. ACLU and 2004 Ashcroft v. ACLU opinions, both of which dealt with the Internet."
In his dissent, Judge Higginbotham said the majority's attempts to distinguish Ginsberg from later rulings "are unconvincing." Although "Ginsberg remains good law and indubitably recognizes the government's power to protect children from age-inappropriate materials," the Supreme Court "has unswervingly applied strict scrutiny to content-based regulations that limit adults' access to protected speech," he wrote.
The Texas law "limits access to materials that may be denied to minors but remain constitutionally protected speech for adults," Higginbotham wrote. "It follows that the law must face strict scrutiny review because it limits adults' access to protected speech using a content-based distinction—whether that speech is harmful to minors."
Section 230 Analysis Flawed, Professor Says
The 5th Circuit panel majority found that Section 230 of the Communications Decency Act does not preempt the Texas law. Goldman called the decision "another entry in the Fifth Circuit's increasingly unstable Section 230 jurisprudence."
Goldman said that judges seem to be saying "that the age authentication mandate only regulates the services' conduct, and thus it doesn't impose liability for third-party content... However, fundamentally, the statute imposes liability for services for publishing third-party content to underage viewers, and Section 230 clearly should apply to that aspect."
Goldman expects this case or similar ones to reach the Supreme Court:
The Texas law also creates privacy problems, Higginbotham wrote in his dissent. It "prohibits commercial entities and third parties performing age verification from retaining identifying information, but the bill imposes no burden on governmental entities nor 'any intermediary between the commercial websites and the third-party verifiers' to do the same. Simply claiming that the 'age verification preserves online anonymity' does not make it so," he wrote.
Platforms Could Be Sued by Texas AG
In the meantime, the Free Speech Coalition said that "platforms that do not implement age verification measures will be at risk of prosecution by the Attorney General, as has been the case since the Fifth Circuit stayed the preliminary injunction last September."
The law applies to websites in which more than one-third of the content "is sexual material harmful to minors." Those websites must "use reasonable age verification methods" to limit their material to adults.
The one bit of good news for websites that challenged the law is the 5th Circuit's finding that the requirement to display health warnings about pornography "unconstitutionally compel[s] speech" and cannot be enforced.
"The warnings declare the potential harm of minors' engaging with pornography, and they do so in a noticeable fashion—in a way likely to discourage minors from using and adults from allowing their children to use the websites," the court wrote.
Government bodies seeking to restrict commercial speech must show that the restrictions will alleviate a harm to a material degree. Texas failed that test, the court said: “Because Texas has not made such a showing, we adopt the approach recently taken by the Ninth Circuit: '[C]ompelling sellers to warn consumers of a potential 'risk' never confirmed by any regulatory body—or of a hazard not 'known' to more than a small subset of the scientific community—does not directly advance' the government's interest.”
This story originally appeared on Ars Technica.
