Score one for Pornhub: A federal judge ruled Thursday that a Texas law requiring pornography sites to institute age-verification measures — and add prominent warning labels about the alleged dangers of porn — violates the U.S. Constitution’s First Amendment prohibition against free-speech restrictions.
A lawsuit seeking to overturn the Texas legislation was filed Aug. 4 by the Free Speech Coalition, a group that included Pornhub’s parent company, adult industry advocacy groups and an adult performer (referred to in filings as “Jane Doe”).
Under the Texas law, which was set to go into effect Sept. 1, 2023, porn sites would have been required to use “reasonable age verification methods” to “verify that an individual attempting to access the material is 18 years of age or older.” In addition, pornography sites would have been forced to display a “Texas Health and Human Services Warning” in at least 14-point font — one such warning was specified to read, “Pornography increases the demand for prostitution, child exploitation, and child pornography” — along with a national toll-free number for people with mental health disorders. Texas Gov. Greg Abbott signed H.B. 1181 into law on June 12.
In the Aug. 31 ruling, Senior U.S. District Judge David A. Ezra of the U.S. District Court for the Western District of Texas wrote, “The Court finds that H.B. 1181 is unconstitutional on its face.” The ruling enjoined Angela Colmenero, acting attorney general of Texas, from taking any enforcement action under H.B. 1181 “pending further order or final judgment.”
“The statute is not narrowly tailored and chills the speech of Plaintiffs and adults who wish to access sexual materials,” Ezra said in the decision. “[T]he law is not narrowly tailored because it substantially regulates protected speech, is severely underinclusive, and uses overly restrictive enforcement methods.”
The judge concluded, “The Court agrees that the state has a legitimate goal in protecting children from sexually explicit material online. But that goal, however crucial, does not negate this Court’s burden to ensure that the laws passed in its pursuit comport with established First Amendment doctrine. There are viable and constitutional means to achieve Texas’s goal, and nothing in this order prevents the state from pursuing those means.”
The Texas AG “immediately appealed” the decision and is seeking a stay of the injunction, according to a rep for the Office of the Attorney General of Texas.
A copy of the decision is available at this link. Plaintiffs in the lawsuit that sought the preliminary injunction blocking the Texas law included MG Freesites (operated by Pornhub’s parent company, which is now called Aylo), WebGroup Czech Republic, NKL Associates and MediaMe SRL.
At least five other states have enacted similar age-verification laws aimed at blocking access to pornography sites: Arkansas, Louisiana, Mississippi, Utah and Virginia. Pornhub, for one, after complying with the Louisiana law, subsequently opted to block access to users in the other four states.
Pornhub’s parent company, MindGeek, was sold to Canadian private-equity firm Ethical Capital Partners earlier this year. ECP has since changed the name of MindGeek to Aylo, saying the rebranding would give it a “fresh start.”
In a statement Thursday, Aylo said, “We are pleased with the court’s decision today, which reaffirms our position that the age-verification law implemented in Texas is unconstitutional. We have publicly supported mandatory age verification of viewers of adult content for years, but any method of age verification must preserve user privacy and safety. The only solution that makes the internet safer, preserves user privacy, and stands to prevent children from accessing age inappropriate content is performing age verification at the device level.”
The company continued, “We are pleased that the court recognizes the severity of compelled speech and its presence in this law that Texas has implemented. We are proud to fight for our industry and the performers that use it to legally earn a living, and we are glad to see the court recognize that this law is unconstitutional and would have required adult entertainers to falsely imply that their content poses health risks.”
