FSC Statement on Fifth Circuit Court of Appeals Decision in Texas Age Verification Challenge

This afternoon, the United States Court of Appeals for the 5th Circuit handed down a mixed opinion in Free Speech Coalition v. Paxton. The Court unanimously upheld the preliminary injunction barring the state from mandating pseudoscientific “health warnings” on adult websites. By a 2-1 decision, however, it 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 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. We recommend that those with questions speak with counsel who can advise them on the best option for their situation.

We disagree strenuously with the analysis of the Court majority. As the dissenting opinion by Judge Higginbotham makes clear, this ruling violates decades of precedent from the Supreme Court: “[T]he Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech.” In the case of HB 1181, “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.”  

Judge Higginbotham also points to the the fact that “government entities and third-party intermediaries are not required to delete users’ data” to illustrate how the majority “ignores the ‘special First Amendment concerns’ of the chilling effects on speech when the state government can log and track adults’ access to sexual material.” Recognizing the flimsiness of the state’s assertions, he points out that “[s]imply claiming that the ‘age verification preserves online anonymity’ does not make it so.” 

Referring to Judge Ezra’s decision in the District Court, Judge Higginbotham ends his powerful dissent by saying, under that standard, “the able veteran district judge did not err in finding a likelihood of success on the merits…Facts matter. Facts decide cases and trial is their proper forum.”

Our battle, of course, is just beginning. Unfortunately, we’ve already seen how this designation has been weaponized to censor and ban LGBTQ+ literature, reproductive rights resources, sex education, art, and healthcare. Sexual expression, online and off, has been and continues to be the canary in the coal mine of free speech. Many of the First Amendment protections Americans hold dear are the result of hard battles fought by the adult industry and others over issues such as these. None of these battles has ever been simple or easy, though they have been important and just. 

Over the coming days, we will begin to discuss our next steps in regard to both this lawsuit and others, and will keep our members informed of our progress. Should anyone be served with a lawsuit by the state of Texas, or any other state, we urge you to contact the Free Speech Coalition immediately.

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Joining Free Speech Coalition as co-plaintiffs are an array of adult platforms and workers, including MG Premium LTD; MG Freesites LTD; Webgroup Czech Republic, A.S.; NKL Associates, S.R.O.; Sonesta Technologies, S.R.O.; Sonesta Media, S.R.O.; Yellow Production S.R.O.; Paper Street Media, LLC; Neptune Media, LLC; Mediame SRL; Midus Holdings, INC.;  and Jane Doe, an adult content creator.

Attorneys for the Plaintiffs are Michael T. Zeller, Derek L. Shaffer, Thomas Nolan, Arian Koochesfahani, and Scott Cole of Quinn Emanuel Urqhart & Sullivan, LLP and Jeffrey Sandman of Webb Daniel Friedlander, LLP.

Amici for Plaintiffs are American Civil Liberties Union, Center for Democracy & Technology, Electronic Frontier Foundation, Foundation for Individual Rights and Expression, Media Coalition Foundation, and TechFreedom

Read the Court’s decision here.