AUSTIN — A Fifth Circuit panel ruled Thursday on Texas’ controversial age verification law, overturning a lower court’s injunction against enforcement but striking down a provision that required adult websites to carry a “health warning” places that perpetuated religious anti-porn propaganda myths.
The opinion was written by Judge Jerry E. Smith, who stated that the law “does not violate the First Amendment because it serves the government’s ‘legitimate interest’ in deterring children from viewing pornography,” Bloomberg Law reported.
In a partial dissent, Justice Patrick E. Higginbotham argued that the law “would also restrict speech that is constitutionally protected for adults — such as novels, scenes from the hit TV show ‘Game of Thrones’ and Marlon Brando films,” Bloomberg Law reported.
“Such an action ‘is to burn down the house to roast the pig,’” Higginbotham wrote.
Judge Jerry E. Smith wrote in an opinion Thursday.
Texas law (HB 1181) requires companies that distribute “harmful” and “obscene” material on the Internet to verify the age of each user. It carries a fine of $10,000 per violation. Attorney General Ken Paxton began enforcing the law in February, filing a $1.6 million lawsuit against the company that owns the adult site PornHub.
In overturning the preliminary injunction, the Fifth Circuit indicated that the case brought by the Free Speech Coalition, which represents the adult entertainment industry, is unlikely to succeed on its merits.
Judge Patrick E. Higginbotham argued in a partial dissent that the law would also restrict speech that is constitutionally protected for adults, such as novels, scenes from the hit TV show “Game of Thrones” and Marlon Brando films. “Such an action ‘is to burn down the house to roast the pig,’” Higginbotham wrote.
FSC issued a statement citing Higginbotham’s dissent.
“We strongly disagree with the Court’s majority analysis,” FSC wrote. “As Judge Higginbotham’s dissent makes clear, this ruling violates decades of Supreme Court precedent: ‘[T]The Supreme Court has applied unwavering scrutiny to content-based regulations that restrict adults’ access to protected speech.” In the case of HB 1181, ‘the law should be closely scrutinized because it limits adults’ access to protected speech through a content-based distinction – whether that speech is harmful to minors.’”
The Fifth Circuit “upheld the district court’s order on the health disclaimers intact, saying the required notices were unconstitutionally expressed,” Bloomberg Law reported.