LOS ANGELES – The Free Speech Coalition (FSC) released a statement Thursday regarding the 5th Circuit of Appeals’ decision on its lawsuit challenging enforcement of Texas’ controversial age verification and mandatory labeling law.
This afternoon, the U.S. Court of Appeals for the 5th Circuit issued a mixed opinion in Free Speech Coalition v. Paxton. The Court unanimously upheld the preliminary injunction banning the state from imposing pseudoscientific “health warnings” on adult websites. However, a 2-1 decision lifted the injunction against the state’s age verification mandate.
To be clear, this decision does not change the fact that platforms that do not implement age verification measures are at risk of prosecution by the Attorney General, as has been the case since the Fifth Circuit stayed the preliminary injunction last September. We encourage those with questions to speak with a counselor who can advise them on the best option for their situation.
We completely disagree with the analysis of the majority of the Court. As Justice 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 limit 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.”
Judge Higginbotham also points to the fact that “government agencies and third-party intermediaries are not required to delete user data” to illustrate how the majority “ignores the ‘special First Amendment concerns’ of the chilling effects on speech when state government can register and track adult access to sexual material.” He acknowledges the weakness of the state’s claims and points out that “[s]implying that ‘age verification preserves online anonymity’ does not mean that it does.”
Referring to Judge Ezra’s decision in the District Court, Judge Higginbotham ends his strong dissent by saying, under that standard, “the able, experienced district judge made no error in assessing the likelihood of success under the grounds… Facts are important. Facts decide cases and the trial is their proper forum.”
Of course, our battle has only just begun. Unfortunately, we have already seen how this designation has been weaponized to censor and ban LGBTQ+ literature, reproductive rights, sex education, the arts, and healthcare. Sexual expression, online and offline, is and remains the canary in the coal mine of freedom of expression. Many of the First Amendment protections that Americans hold dear are the result of hard battles waged by the adult industry and others on these issues. None of these battles have ever been simple or easy, although they have been important and just.
In the coming days, we will begin discussing our next steps regarding both this and other lawsuits, and will keep our members updated on our progress. If anyone is being sued by the State of Texas or any other state, we encourage you to contact the Free Speech Coalition immediately.
For more information, visit FreeSpeechCoalition.com.