Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
FREE SPEECH COALITION, INC., et § No. 1:23-CV-917-DAE al., §
§
Plaintiffs, §
§
vs. §
§
ANGELA COLMENERO, in her §
official capacity as Interim Attorney §
General for the State of Texas, §
§
Defendant. §
________________________________ §
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§
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§ ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Before the Court is Plaintiff Free Speech Coalition, et al.’s (“Plaintiffs”) motion for a preliminary injunction (Dkt. # 5). On August 23, the Court held a hearing on the matter. Upon careful consideration of the arguments raised by the parties in the briefing and at the hearing, the Court—for reasons that follow— GRANTS Plaintiffs’ motion as to their First Amendment claims and GRANTS the motion in part as to their Section 230 claims. Defendant Colmenero is preliminarily ENJOINED from enforcing H.B. 1181.
I. BACKGROUND
This case concerns a law passed by the State of Texas that restricts access to pornographic websites by requiring digital age verification methods and warnings about the alleged harms caused by pornography. See Act of June 12, 2023, Ch. 676, § 2 (H.B. 1181) Tex. Sess. Law Serv. (Vernon’s) (hereinafter, “HB 1181”). Plaintiffs, comprised of online pornography websites, performers, and advocates, bring suit to stop the law from being enforced before it takes effect on September 1, 2023.
A. The Parties
Plaintiffs can largely be split into three categories. First is Free Speech Coalition, Inc. (“Free Speech Coalition”), a nonprofit trade association of adult content performers, producers, distributors, and retailers. (Compl., Dkt. # 1, at 4). Free Speech Coalition assists its members in their First Amendment expression, and its members include adult content performers and businesses that produce and sell adult content. (Id.) Free Speech Coalition alleges that “many of [its] members are . . . gravely concerned about the consequences of [H.B. 1181], but who fear for their safety should they come forward to challenge [H.B. 1181] in court.” (Id.). Free Speech Coalition also alleges that it has been forced to divert resources from its normal day-to-day activities in order to track legislation, meet with attorneys, and engage in risk-management to minimize the harm that age-verification statutes like H.B. 1181 pose to their members.
Second, several Plaintiffs are companies that produce, sell, and license adult content. Many of these are incorporated abroad, while others are U.S.-based companies. Plaintiff MG Premium Ltd. is a Cypriot company that operates SpiceVids.com, Brazzers.com, and FakeTaxi.com, all of which are subscription- based adult-content websites. (Id. at 4–5). MG Premium Ltd writes, hires, and does pre- and post-production work for the adult videos, uploading them to their own sites and to others. (Id. at 5). Similarly, Plaintiff MG Freesites Ltd operates Pornhub.com, which hosts uploaded content owned, copyrighted, and controlled by third parties. (Id.) Plaintiff WebGroup Czech Republic, a.s., operates xvideos.com, a free website that hosts adult videos. (Id.) Plaintiff NKL Associates, s.r.o, operates xnxx.com, which similarly hosts free adult videos. (Id.) Plaintiff Sonesta Technologies, s.r.o. operates BangBros.com, a subscription-based website offering adult videos. (Id. at 6). Plaintiff Yellow Production, s.r.o. owns and produces FakeTaxi and licenses its content to other adult websites, including Pornhub, Xvideos, Xnxx, and SpiceVids.
Three website Plaintiffs reside and principally operate in the United States. Plaintiff Paper Street Media, LLC resides in Florida and operates TeamSkeet, a network of subscription-based adult websites. Paper Street owns the intellectual property rights to these videos, and shoots with adult performers, writes the scripts, and hires and employs the production teams. (Id.) Plaintiff Neptune Media likewise resides in Florida and operates the MYLF adult content network, which is similarly comprised of several adult-content subscription services and websites. (Id. at 7). Plaintiffs MediaME SRL, a Romanian company, hosts free adult entertainment websites, while Plaintiff Midus Holdings, Inc., another Florida company, operates subscription-based sites. (Id. at 7–8). These companies operating in and outside the United States (collectively, “the Adult Video Companies”) oppose H.B. 1181 and allege that it would unconstitutionally restrict their free expression and compel them to post government-mandated speech. They also oppose the law on the basis that it violates the immunity vested on website publishers by Section 230 of the Communications Decadency Act (“CDA”).
Third and finally, Plaintiff Jane Doe is an adult performer whose content is featured on several adult websites, including Pornhub.com, as well as CamSoda, Sextpanther, and MyFreeCams. (Id.; Doe Decl., Dkt. 5-6). [1] Doe opposes the restrictions that H.B. 1181 would place on their ability to reach audiences and is against the messages websites would have to convey about the purported harmful effects of pornography. (Id.)
Defendant Angela Colmenero is sued in her official capacity as Interim Attorney General for the State of Texas. Plaintiffs bring suit against her under the Ex parte Young exception to sovereign immunity, arguing that she has the authority to enforce H.B. 1181. (Id. at 3).
B. H.B. 1181
On June 12, 2023, Texas Governor Greg Abbott signed H.B. 1181 into law.
(Id. at 8). H.B. 1181 is set to take effect on September 1, 2023. H.B. 1181 contains two requirements, both of which are challenged in this litigation. First, the law requires websites to use “reasonable age verification methods . . . to verify that an individual attempting to access the material is 18 years of age or older.” H.B. 1181 § 129B.002. Second, the law requires adult content websites to post a warning about the purported harmful effects of pornography and a national helpline for people with mental health disorders. H.B. 1181 § 129B.003.
The law defines “sexual material harmful to minors” as including any material that “(A) the average person applying contemporary community standards would find, taking the material as a whole is and designed to appeal or pander to the prurient interest” to minors, (B) is patently offensive to minors, and (C) “taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” Id. § 129b.001.
The law regulates a “commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors . . . .” Id. § 129B.002. H.B. 1181 requires these companies to “comply with a commercial age verification system that verifies age using: (A) government-issued identification; or (B) a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.” H.B. 1181 § 129B.003. “Transactional data” refers to a “sequence of information that documents an exchange . . . used for the purpose of satisfying a request or event. The term includes records from mortgage, education, and employment entities.” Id. H.B. 1181 does not allow the companies or third-party verifiers to “retain any identifying information of the individual.” Id. § 129B.002.
In addition to the age verification, H.B. 1181 requires adult content sites to post a “public health warning” about the psychological dangers of pornography. In 14-point font or larger, sites must post:
TEXAS HEALTH AND HUMAN SERVICES WARNING:
Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.
TEXAS HEALTH AND HUMAN SERVICES WARNING:
Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.
TEXAS HEALTH AND HUMAN SERVICES WARNING:
Pornography increases the demand for prostitution, child exploitation, and child pornography.
Id. § 129B.004.
Although these warnings carry the label “Texas Health and Human Services,” it appears that the Texas of Health and Human Services Commission has not made these findings or announcements.
Finally, the law requires that websites post the number of a mental health hotline, with the following information:
1-800-662-HELP (4357) THIS HELPLINE IS A FREE, CONFIDENTIAL INFORMATION SERVICE (IN ENGLISH OR SPANISH) OPEN 24 HOURS PER DAY, FOR INDIVIDUALS AND FAMILY MEMBERS FACING MENTAL HEALTH OR SUBSTANCE USE DISORDERS. THE SERVICE PROVIDES REFERRAL TO LOCAL TREATMENT FACILITIES, SUPPORT GROUPS, AND COMMUNITY BASED ORGANIZATIONS.
Id.
H.B. 1181 authorizes the Texas Attorney General to bring an action in state court to enjoin the violation and recover up to $10,000.00 for each day of a violation, if it is “in the public interest.” Id. § 129B.005. If a minor accesses sexual
material, the Attorney General may seek an additional amount up to $250,000.00 per violation. Id.
II. LEGAL STANDARDS A. Preliminary Injunction
A preliminary injunction is an extraordinary remedy, and the decision to
grant such relief is to be treated as the exception rather than the rule. Valley v.
Rapides Par. Sch. Bd.,
III. DISCUSSION – LIKELIHOOD OF SUCCESS ON THE MERITS Plaintiffs’ motion and Defendant’s response raise four merits issues: (1) do Plaintiffs have standing to bring suit, (2) is the age verification requirement unconstitutional, (3) is the health warning unconstitutional, and (4) does Section 230 of the CDA preempt the law? The Court will address each in turn.
A. Standing
Plaintiffs have standing to bring suit. To have Article III standing, a plaintiff
must “(1) have suffered an injury in fact, (2) that is fairly traceable to the
challenged action of the defendant, and (3) that will likely be redressed by a
favorable decision.” Speech First, Inc. v. Fenves,
Plaintiffs’ expression is afforded a constitutional interest. Plaintiffs seek to
produce, distribute, and post legal adult content online, free of overbroad
restrictions and without being compelled to speak about the purported harms of
sexually explicit videos. Jane Doe and members of Free Speech Coalition seek to
continue performances in adult videos with wide audiences. This conduct is
regulated by H.B. 1181, which sets restrictions on when and how adult videos can
be posted. Beyond the restrictions on speech, the law interferes with the Adult
Video Companies’ ability to conduct business, and risks deterring adults from
visiting the websites. Finally, “the law is aimed directly at plaintiffs, who . . . will
have to take significant and costly compliance measures,” which suffices to show
pre-enforcement injury. Virginia v. Am. Booksellers Ass’n, Inc.,
As to the required disclosures, compelled speech necessarily involves a
constitutional interest. Janus v. Am. Fed’n. of State, Cnty., and Mun. Employees,
Council 31,
H.B. 1181 imposes substantial liability for violations, including $10,000.00
per day for each violation, and up to $250,000.00 if a minor is shown to have
viewed the adult content. Finally, the threat of future enforcement is substantial—
the Attorney General has not disavowed enforcement of the law, and there is no
reason to believe that the law will not be enforced against those who violate it.
“[W]hen dealing with pre-enforcement challenges to recently enacted (or, at least,
non-moribund) statutes that facially restrict expressive activity by the class to
which the plaintiff belongs, courts will assume a credible threat of prosecution in
the absence of compelling contrary evidence.”
Speech First
,
Free Speech Coalition has associational standing. An association has
standing to bring claims on behalf of its members when “(1) individual members
would have standing, (2) the association seeks to vindicate interests germane to its
purpose, and (3) neither the claim asserted nor the relief requested requires the
individual members’ participation.” Students for Fair Admissions, Inc. v. Univ. of
Tex. at Austin,
Defendant contends that Free Speech Coalition lacks associational standing
because it has not identified one member with individual standing in its motion for
a preliminary injunction. (Def.’s Resp., Dkt. # 27, at 5 (citing NAACP v. City of
Kyle,
Beyond their own First Amendment injuries, Plaintiffs have standing for
their overbreadth challenge. Broadrick v. Oklahoma,
ii. Foreign Websites have First Amendment Protection for Domestic Operations
Defendant repeatedly emphasizes that the foreign website Plaintiffs “have no valid constitutional claims” because they reside outside the United States. (Def.’s Resp., Dkt. # 27, at 6–7). First, it is worth noting that this argument, even if successful, would not bar the remaining Plaintiffs within the United States from bringing their claims. Several website companies, including Midus Holdings, Inc., Neptune Media, LLC, and Paper Street Media, LLC, along with Jane Doe and Free Speech Coalition (with U.S. member Paper Street Media, LLC), are United States residents. Defendant, of course, does not contest that these websites and Doe are entitled to assert rights under the U.S. Constitution. Regardless of the foreign websites, the domestic Plaintiffs have standing.
As to the foreign websites, Defendant cites Agency for Intl. Dev. v. All. for
Open Socy. Intl., Inc.,
AOSI differs from the instant litigation in two critical ways. First, Plaintiffs
do not seek to challenge rule or policymaking with extraterritorial effect, as the
foreign plaintiffs did in AOSI. By contrast, the foreign Plaintiffs here seek to
exercise their First Amendment rights only as applied to their conduct inside the
United States and as a preemptive defense to civil prosecution. Indeed, courts have
typically awarded First Amendment protections to foreign companies with
operations in the United States with little thought.
See, e.g.
, Manzari v. Associated
Newspapers Ltd.,
Second, unlike the foreign plaintiffs in AOSI, the foreign website Plaintiffs in the instant case do operate in the United States for all purposes relevant to this litigation. As regulated by H.B. 1181, their speech and conduct occurs in Texas. Their pre-enforcement challenge, by definition, requires Plaintiffs to show that the risk of civil prosecution in Texas is concrete and imminent. AOSI itself reaffirmed that “foreign citizens in the United States may enjoy certain constitutional rights . . . .” Id. at 2086. To the extent their conduct “operates” in the United States and subjects them to real or imminent liability here, the foreign website Plaintiffs receive First Amendment protection. [2]
The constitutional rights of foreign companies operating in the United States
is particularly important in the First Amendment context. “The First Amendment
protects speech for the sake of both the speaker and the recipient.” Thunder
Studios, Inc. v. Kazal,
iii. Traceability and Redressability
Plaintiffs’ injuries are traceable to Defendant, and Defendant does not
contest this in her response. (Def.’s Resp., Dkt. # 27). The Texas Attorney General
is tasked with bringing civil prosecutions under H.B. 1181. Their injuries will be
redressed by an injunction or declaration that the law is unconstitutional.
See
Natl.
Press Photographers Assn. v. McCraw,
B. Sovereign Immunity
While Plaintiffs raise the issue of sovereign immunity in their preliminary
injunction motion, Defendant does not contest the issue in her response. (Def.’s
Resp., Dkt. # 27). Because the issue is jurisdictional, the Court will briefly address
it.
See, e.g.
, FDIC v. Meyer,
Neither a specific grant of enforcement authority nor a history of
enforcement is required to establish a sufficient connection. City of Austin, 943
F.3d 993 at 1001; Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’
Comp.,
Colmenero is plainly tasked with enforcing H.B. 1181. Section 129B.006 vests the Attorney General with the exclusive authority to bring an action. H.B. 1181 § 129B.006(a) (“If the attorney general believes that an entity is knowingly violating . . . this chapter[,] the attorney general may bring an action . . . to enjoin the violation, recover a civil penalty, and obtain other relief the court considers appropriate.”). Moreover, the attorney general “may recover reasonable and necessary attorney’s fees and costs incurred in an action under this section.” Id. § 129B.006(b)(6).
Once it is clear that the named defendant is proper, the Court conducts a
Verizon “straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.”
Verizon Maryland, Inc. v. Pub. Serv. Commn. of Maryland,
C. The Age Verification Requirement is Subject to Strict Scrutiny i. Strict Scrutiny Applies
First, the Court must determine which level of scrutiny to apply. H.B. 1181
differentiates between sexual and non-sexual material for minors, so a short
overview of historical regulations on minors’ access to pornography is helpful. In
1968 in Ginsberg v. State of New York, the Supreme Court upheld a conviction of
a person under a state statute that criminalized knowingly providing obscene
materials “for minors” to minors.
However, beginning in the 1990s, use of the “for minors” language came under more skepticism as applied to internet regulations. In Reno v. ACLU, the Supreme Court held parts of the CDA unconstitutional under strict scrutiny. 521 U.S. 844, 850 (1997). The Court noted that the CDA was a content-based regulation that extended far beyond obscene materials and into First Amendment protected speech, especially because the statute contained no exemption for socially important materials for minors. Id. at 865. The Court noted that accessing
sexual content online requires “affirmative steps” and “some sophistication,” noting that the internet was a unique medium of communication, different from both television broadcast and physical sales. Id. at 854. The Court held Ginsberg distinct on four separate grounds and largely found it inapplicable to digital regulations like the CDA. Id. at 864–68.
After Reno v. ACLU, the federal government tried again, passing the Child
Online Protection Act (“COPA”), which restricted the ability to post content online
that was harmful to minors for commercial purposes. Ashcroft v. ACLU, 535 U.S.
564 (2002); Child Online Protection Act, 47 U.S.C. § 231 (1998). In separate
decisions, the Third Circuit held that the law was similarly unconstitutional under
strict scrutiny. Am. Civ. Liberties Union v. Ashcroft,
Just like COPA, H.B. 1181 regulates beyond obscene materials. As a result,
the regulation is based on whether content contains sexual material. Because the
law restricts access to speech based on the material’s content, it is subject to strict
scrutiny. Id.; Ent. Software Ass’n v. Blagojevich,
Defendant largely concedes that strict scrutiny applies, (Def.’s Resp., Dkt. # 27, at 6, 9), but hopes that H.B. 1181 should “be subject to a lower standard of judicial scrutiny because it regulates only ‘commercial entities, publication and distribution of material harmful to minors.” (Id. at 9 (citing Ashcroft v. ACLU, 542 U.S. at 676 (Scalia, J., dissenting))). As Defendant tacitly acknowledges, a district court is not at liberty to disregard existing Supreme Court precedent in favor of a dissenting opinion. Nor is Defendant entitled to contest Plaintiffs’ likelihood of success based on the possibility that the Supreme Court may revisit its precedent. This Court cannot reduce the applicable level of scrutiny based on a non-binding, dissenting opinion.
In a similar vein, Defendant argues that Plaintiffs’ content is “obscene” and
therefore undeserving of First Amendment coverage. (Id. at 6). Again, this is
precedent that the Supreme Court may opt to revisit, but we are bound by the
current Miller framework. Miller v. California,
Defendant also suggests that the Court consider H.B. 1181 a “time, place,
and manner” restriction. (Def.’s Resp., Dkt. # 27, at 6 (“A law requiring porn sites
to turn away children is no different than one that prohibits a strip club from
operating next to an elementary school or allowing a 13-year-old to enter.”)).
Again, this seems to be inserted largely for the purposes of Supreme Court review
as the notion is plainly foreclosed by ACLU v. Reno. There, the Supreme Court
held that a law that “applies broadly to the entire universe of cyberspace” and
seeks to protect children from offensive speech “is a content-based blanket
restriction on speech, and, as such, cannot be ‘properly analyzed as a form of time,
place, and manner regulation.’” ACLU v. Reno,
Because the law regulates speech based upon the content therein, including content deserving of First Amendment protection, it must survive strict scrutiny. To endure strict scrutiny, H.B. 1181 must: (1) serve a compelling governmental interest, (2) be narrowly tailored to achieve it, and (3) be the least restrictive means of advancing it. Sable Commc’ns of Cal., Inc. v. Fed. Commc’ns Comm’n, 492 U.S. 115, 126 (1989).
ii. H.B. 1181 Nominally Protects a Compelling State Interest
Plaintiffs concede for the purposes of this motion that Defendant’s stated
interest here is compelling. It is uncontested that pornography is generally
inappropriate for children, and the state may regulate a minor’s access to
pornography. Ginsberg,
D. The Statute is not Narrowly Tailored
i. The law is underinclusive
Although the state defends H.B. 1181 as protecting minors, it is not tailored
to this purpose. Rather, the law is severely underinclusive. When a statute is
dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint
discrimination under false auspices, or at a minimum simply does not serve its
purported purpose.
See
City of Ladue v. Gilleo,
H.B. 1181 will regulate adult video companies that post sexual material to their website. But it will do little else to prevent children from accessing pornography. Search engines, for example, do not need to implement age verification, even when they are aware that someone is using their services to view pornography. H.B. 1181 § 129B.005(b). Defendant argues that the Act still protects children because they will be directed to links that require age verification. (Def.’s Resp., Dkt. # 27, at 12). This argument ignores visual search, much of which is sexually explicit or pornographic, and can be extracted from Plaintiffs’ websites regardless of age verification. (Sonnier Decl., Dkt. # 31-1, at 1–2). Defendant’s own expert suggests that exposure to online pornography often begins with “misspelled searches[.]” (Dines Decl., Dkt. # 27-1, at 2).
Even more problematic is that H.B. 1181 applies only to the subset of pornographic websites that are subject to personal jurisdiction in Texas. Indeed, Defendant implicitly concedes this when they argue that the foreign Adult Video Company Plaintiffs are not subject to jurisdiction in the United States. If foreign websites are not subject to personal jurisdiction in Texas, then H.B. 1181 will have no valid enforcement mechanism against those websites, leaving minors able to access any pornography as long as it is hosted by foreign websites with no ties to the United States.
In addition, social media companies are de facto exempted, because they likely do not distribute at least one-third sexual material. This means that certain social media sites, such as Reddit, can maintain entire communities and forums (i.e., subreddits), dedicated to posting online pornography with no regulation under H.B. 1181. (Sonnier Decl., Dkt. # 31-1, at 5). The same is true for blogs posted to Tumblr, including subdomains that only display sexually explicit content. (Id.) Likewise, Instagram and Facebook pages can show material which is sexually explicit for minors without compelled age verification. (Cole Decl., Dkt. # 5-1, at 37–40). The problem, in short, is that the law targets websites as a whole, rather than at the level of the individual page or subdomain. The result is that the law will likely have a greatly diminished effect because it fails to reduce the online pornography that is most readily available to minors. (Id. at 36–38; Dines Decl., Dkt. # 27-1, at 2).
The compelled disclosures are especially underinclusive. H.B. 1181’s health warnings apply to websites with one-third sexual material, but these websites will already screen out minors through age verification. By contrast, websites with less than one-third sexual material do not need to post any warning at all, even though they have no age verification requirement. The result is that a health disclaimer, ostensibly designed for minors, will be seen by adults visiting Pornhub, but not by minors visiting pornographic subreddits.
In sum, the law is severely underinclusive. It nominally attempts to prevent
minors’ access to pornography, but contains substantial exemptions, including
material most likely to serve as a gateway to pornography use. Williams-Yulee v.
Fla. Bar,
ii. The statute’s sweep is unclear
The statute’s tailoring is also problematic because of several key ambiguities in H.B. 1181’s language. Although the Court declines to rest its holding on a vagueness challenge, those vagueness issues still speak to the statute’s broad tailoring. First, the law is problematic because it refers to “minors” as a broad category, but material that is patently offensive to young minors is not necessarily offensive to 17-year-olds. As previously stated, H.B. 1181 lifts its language from the Supreme Court’s holdings in Ginsberg and Miller, which remains the test for
obscenity. H.B. 1181 § 129B.001; Miller,
The result of this language as applied to online webpages is that constitutionally protected speech will be chilled. A website dedicated to sex education for high school seniors, for example, may have to implement age verification measures because that material is “patently offensive” to young minors and lacks educational value for young minors. Websites for prurient R-rated movies, which likewise are inappropriate and lacking artistic value for minors under the age of 17, would need to implement age verification (and more strangely, warn visitors about the dangers of pornography).
Second, H.B. 1181 is subject to multiple interpretations as to the scope of its liability. H.B. 1181 limits its coverage to a “commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors.” H.B. 1181 § 129B.002(a). But it is unclear whether “one-third” modifies “material” or “website.” Does “material” refer to all content posted on a site, or does it apply to any single piece of content? By example, if a small fraction of YouTube’s videos contain sexual material, does it need to verify user’s ages with the State? The law’s text is vague on this point, but risks enormous financial harm, including fines up to $250,000 per violation if Defendant opts for the broader interpretation. [8] And the law offers no guidance as to how to calculate the “one- third”—whether it be the number of files, total length, or size.
Third, H.B. 1181 similarly fails to define proper age verification with
sufficient meaning. The law requires sites to use “any commercially reasonable
method that relies on public or private transactional data” but fails to define what
“commercially reasonable” means. Id. § 129B.03(b)(2)(B). “Digital verification” is
defined as “information stored on a digital network that may be accessed by a
commercial entity and that serves as proof of the identify of an individual.” Id. §
129B.003(a). As Plaintiffs argue, this definition is circular. In effect, the law
defines “identity verification” as information that can verify an identity. Likewise,
the law requires “14-point font,” but text size on webpages is typically measured
by pixels, not points.
See
Erik D. Kennedy,
The Responsive Website Font Size
Guidelines
, Learn UI Design Blog (Aug. 7, 2021) (describing font sizes by pixels)
(Dkt. # 5-1 at 52–58). Overall, because the Court finds the law unconstitutional on
other grounds, it does not reach a determination on the vagueness question. But the
failure to define key terms in a comprehensible way in the digital age speaks to the
lack of care to ensure that this law is narrowly tailored.
See
Reno,
iii. The law is overbroad, even under narrow constructions
Even if the Court were to adopt narrow constructions of the statute, it would
overburden the protected speech of both sexual websites and their visitors. Indeed,
Courts have routinely struck down restrictions on sexual content as improperly
tailored when they impermissibly restrict adult’s access to sexual materials in the
name of protecting minors.
See, e.g.
, Ex Parte Lo,
App. 2013) (striking down restrictions on “grooming” as overbroad and not
narrowly tailored); Garden Dist. Book Shop, Inc. v. Stewart,
Plaintiffs are likely to succeed on their overbreadth and narrow tailoring
challenge because H.B. 1181 contains provisions largely identical to those twice
deemed unconstitutional in COPA.
See
ACLU v. Ashcroft,
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
ACLU v. Mukasey
,
By comparison, H.B. 1181 defines material “harmful to minors” as: (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to or pander to the prurient interest; (B) in a manner patently offensive with respect to minors, exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of: (i) a person's pubic hair, anus, or genitals or the nipple of the female breast; (ii) touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals; or (iii) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
H.B. 1181 § 129B(6)(B).
The statutes are identical, save for Texas’s inclusion of specific sexual offenses. Unsurprisingly, then, H.B. 1181 runs into the same narrow tailoring and overbreadth issues as COPA. In particular, the use of “for minors” and “with respect to minors” has been held overbroad in the context of internet speech. As ACLU v. Ashcroft held:
The term “minor,” as Congress has drafted it, thus applies in a literal sense to an infant, a five-year old, or a person just shy of age seventeen. In abiding by this definition, Web publishers who seek to determine whether their Web sites will run afoul of COPA cannot tell which of these “minors” should be considered in deciding the particular content of their Internet postings. Instead, they must guess at which minor should be considered in determining whether the content of their Web site has “serious ... value for [those] minors.” 47 U.S.C. § 231(e)(6)(C). Likewise, if they try to comply with COPA’s “harmful to minors” definition, they must guess at the potential audience of minors and their ages so that the publishers can refrain from posting material that will trigger the prurient interest, or be patently offensive with respect to those minors who may be deemed to have such interests.
Despite this decades-long precedent, Texas includes the exact same drafting
language previously held unconstitutional. H.B. 1181 only exempts sexual material
that “taken as a whole, lacks serious literary, artistic, political, or scientific value
for minors.” H.B. 1181 § 129B.001(6)(C). Material that is sexual will likely satisfy
H.B. 1181’s test, because it is inappropriate for minors, even though it is not
obscene for adults. Any prurient material risks being regulated, because it will
likely be offensive to minors and lack artistic or scientific value to them. Although
this may be permissible when someone knowingly sells material to a minor, such
as in Ginsberg, it is constitutionally problematic applied to online speech, where
the speech is necessarily broadcast widely.
See
ACLU v. Ashcroft,
Defendant argues that its language is permissible because the Supreme Court
in Sable allowed the government to protect minors from non-obscene material.
(Def.’s Resp., Dkt. # 27, at 17 (citing Sable Commun. of California, Inc., 492 U.S.
at 126)). Defendant stretches the holding of Sable too far. While Sable upheld the
government’s interest in “shielding minors from the influence of literature that is
not obscene by adult standards,” it still noted that those restrictions must survive
strict scrutiny. Sable,
Accordingly, the ACLU decisions control here. The law sweeps far beyond obscene material and includes all content offensive to minors, while failing to exempt material that has cultural, scientific, or educational value to adults only. At the same time, the law allows other websites to show and display explicit material, as long as they have two-thirds non-obscene content. The result is that H.B. 1181’s age verification is not narrowly tailored and fails strict scrutiny. [10]
E. H.B. 1181 is Overly Restrictive
To endure strict scrutiny, a statute must employ the least restrictive means of
protecting minors. Reno,
i. Compelled verification chills protected speech Like the narrow tailoring, this issue has been addressed by the Third Circuit and Supreme Court regarding COPA. In particular, whereas the Supreme Court did not discuss COPA’s overbreadth, its did discuss less restrictive means, making it binding precedent. Id. at 666–73. As the district court found, and the Supreme Court affirmed, “Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them.” Id. The Court elaborated that filtering software is less restrictive because “adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers.” Id. at 667.
Defendant argues that Ashcroft v. ACLU’s analysis no longer applies because it was based on the evidentiary record made by the district court in 1999, which is not applicable to the instant case and of limited relevance to modern internet usage. (Def.’s Resp., Dkt. # 27, at 8–12). As Defendant argues, H.B. 1181 uses more secure information, requires companies to delete their data, and is designed for convenience and privacy protection. (Id. at 11). The Court does not dispute that online interactions have changed since the Supreme Court’s decisions in 1997 and 2004. See Reno v. ACLU, 521 U.S.; Ashcroft v. ACLU, 542 U.S. But as determined by the facts on the record and presented at the hearing, age verification laws remain overly restrictive. Despite changes to the internet in the past two decades, the Court comes to the same conclusion regarding the efficacy and intrusiveness of age verification as the ACLU courts did in the early 2000s. First, the restriction is constitutionally problematic because it deters adults’ access to legal sexually explicit material, far beyond the interest of protecting minors. The Third Circuit’s holding regarding COPA applies equally to H.B. 1181:
“[The law] will likely deter many adults from accessing restricted content because they are unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial. People may fear to transmit their personal information, and may also fear that their personal, identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.”
ACLU v. Ashcroft,
Indeed, as the Third Circuit noted, the “Supreme Court has disapproved of content-based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech . . . .” Id. (collecting cases). The same is true here—adults must affirmatively identify themselves before accessing controversial material, chilling them from accessing that speech. Whatever changes have been made to the internet since 2004, these privacy concerns have not gone away, and indeed have amplified.
Privacy is an especially important concern under H.B. 1181, because the
government is not required to delete data regarding access, and one of the two
permissible mechanisms of age-verification is through government ID. People will
be particularly concerned about accessing controversial speech when the state
government can log and track that access. By verifying information through
government identification, the law will allow the government to peer into the most
intimate and personal aspects of people’s lives. It runs the risk that the state can
monitor when an adult views sexually explicit materials and what kind of websites
they visit. In effect, the law risks forcing individuals to divulge specific details of
their sexuality to the state government to gain access to certain speech. Such
restrictions have a substantial chilling effect.
See
Denver Area Educ. Telecomm.
Consortium, Inc.,
The deterrence is particularly acute because access to sexual material can
reveal intimate desires and preferences. No more than two decades ago, Texas
sought to criminalize two men seeking to have sex in the privacy of a bedroom.
Lawrence v. Texas,
Defendant contests this, arguing that the chilling effect will be limited by age verification’s ease and deletion of information. This argument, however, assumes that consumers will (1) know that their data is required to be deleted and (2) trust that companies will actually delete it. Both premises are dubious, and so the speech will be chilled whether or not the deletion occurs. In short, it is the deterrence that creates the injury, not the actual retention. Moreover, while the commercial entities (e.g., Plaintiffs) are required to delete the data, that is not true for the data in transmission. In short, any intermediary between the commercial websites and the third-party verifiers will not be required to delete the identifying data.
Even beyond the capacity for state monitoring, the First Amendment injury is exacerbated by the risk of inadvertent disclosures, leaks, or hacks. Indeed, the State of Louisiana passed a highly similar bill to H.B. 1181 shortly before a vendor for its Office of Motor Vehicles was breached by a cyberattack. In a related challenge to a similar law, Louisiana argues that age-verification users were not identified, but this misses the point. See Free Speech Coalition v. Leblanc, No. 2:23-cv-2123 (E.D. La. filed June 20, 2023) (Defs.’ Resp., Dkt. # 18, at 10). The First Amendment injury does not just occur if the Texas or Louisiana DMV (or a third-party site) is breached. Rather, the injury occurs because individuals know the information is at risk. Private information, including online sexual activity, can be particularly valuable because users may be more willing to pay to keep that information private, compared to other identifying information. (Compl. Dkt. # 1, at 17); Kim Zetter, Hackers Finally Post Stolen Ashley Madison Data , Wired, Aug. 18, 2015, https://www.wired.com/2015/08/happened-hackers-posted-stolen-ashley- madison-data (discussing Ashley Madison data breach and hackers’ threat to “release all customer records, including profiles with all the customers’ secret sexual fantasies and matching credit card transactions, real names and addresses.”). It is the threat of a leak that causes the First Amendment injury, regardless of whether a leak ends up occurring.
In short, while the internet has changed since 2004, privacy concerns have not. Defendant offers its digital verification as more secure and convenient than the ones struck down in COPA and the CDA. This simply does not match the evidence and declarations supported in the parties’ briefing. Users today are more cognizant of privacy concerns, data breaches have become more high-profile, and data related to users’ sexual activity is more likely to be targeted. (Sonnier Decl., Dkt. #5-2, at 44–56; Allen Decl., Dkt. # 27-4, at 4–5). The risks of compelled digital verification are just as large, if not greater, than those in ACLU v. Ashcroft. 322 F.3d at 259.
ii. Less restrictive alternatives are available Plaintiffs offer several alternatives that would target minor’s access to pornography with fewer burdens on adults’ access to protected sexually explicit materials. First, the government could use internet service providers, or ISPs, to block adult content until the adults opt-out of the block. This prevents the repeated submission of identifying information to a third party, and operating at a higher level, would not need to reveal the specific websites visited. If implemented on a device-level, sexual information would be allowed for adults’ devices but not for children when connected to home internet.
In addition, Plaintiffs propose adult controls on children’s devices, many of
which already exist and can be readily set up. This “content filtering” is effectively
the modern version of “blocking and filtering software” that the Supreme Court
proposed as a viable alternative in Ashcroft v. ACLU.
(a) Defendant’s expert highlights alternatives that H.B. 1181 does not allow
Defendant’s own expert shows how H.B. 1181 is unreasonably intrusive in its use of age verification. Tony Allen, a digital technology expert who submitted a declaration on behalf of Defendant, suggests several ways that age-verification can be less restrictive and costly than other measures. (Allen Decl., Dkt. # 26-6). For example, he notes that age verification can be easy because websites can track if someone is already verified, so that they do not have to constantly prove verification when someone visits the page. But H.B. 1181 contains no such exception, and on its face, appears to require age verification for each visit. H.B. 1181 § 129B.003. Commercial age verification systems must use “public or private transactional data” which by its definition includes “records from mortgage, education, and employment entities” but does include third-party verification. Id. § 129B.001. The same goes for Allen’s discussion of “vouching”—where age is verified based on others’ credibility. (Allen Decl., Dkt. # 26-6, at 12). H.B. 1181 does not appear to allow for vouching because it is not based on transactional data. H.B. 1181 § 129B.003.
Similarly, Allen discusses how websites may check age using age estimation based on a user’s voice or face. (Allen Decl., Dkt. # 26-6, at 8, 10–12). But it is not clear that “transactional” data includes biometric verification. H.B. 1181 § 129B.003. Allen also suggests digital identity apps can make the process easier, but then acknowledges that “Texas does not yet have a state issued digital identification card or app.” (Id. at 9). In short, Allen identifies multiple ways that age verification can be less intrusive on users and websites. But H.B. 1181 does not allow these methods.
(b) Defendant’s scientific research emphasizes the benefits of parental-led content filtering
Beyond Defendant’s technical expert, one of their medical surveys also suggests that content filtering can be effective compared to legal bans. The position, taken from a literature review of medical research on children’s access to online sexual material, is worth quoting at length:
In order to contain the risk of inadvertent exposure for children, some technical measures may be adopted by websites, social networks, Internet search engines and Internet providers. Most search engines offer options for safe browsing and are able to block pop-up ads, which are one of the most prominent causes of unintended exposition to age-inappropriate content . However, many authors agree that despite the existence of legal bans for minors’ use of adult sites and the implementation of these measures, it is concretely extremely difficult to block access . Although the web is indeed the major source of pornographic material, the problem can hardly be solved by simply adopting technical limitations. Instead, its deep social roots stress the importance of education and communication with parents, teachers and healthcare professionals.
The literature divides strategies of parental approach in mainly two categories: restrictive mediation and active mediation. Restrictive mediation mostly consists of defining rules about the use of Internet in terms of timing, setting and type of online activity, and possibly making use of the aforementioned technical aids. Active mediation, on the contrary, requires a sharper awareness from parents who qualify themselves as promoters of a safe and responsible use of Internet. This kind of mediation seems to be favoured by Italian parents (56%) and mostly chosen when dealing with younger boys and girls. These mediation strategies have been shown their effectiveness in contrasting the use of [sexually explicit material], and many studies confirm that careful parental control and supervision remain key protective factors .
(Def.’s Resp., Dkt. # 27-2, at 9–10 (citing Niccolò Principi, et al., Consumption of sexually explicit internet material and its effects on minors’ health: latest evidence from the literature ,74 Minerva Pediatr., 332 (June 2022) (“Principi Article”) (internal citations omitted) (emphasis added)).
In short, Defendant’s own study suggests several ways that H.B. 1181 is flawed. As the study points out, pop-up ads, not pornographic websites, are the most common forms of sexual material encountered by adolescents. The study also confirms that blocking pornographic websites and material altogether is extremely difficult to accomplish through “legal bans.” And most crucially, the study highlights the importance of content filtering alongside parental intervention as the most effective method of limiting any harm to minors. Defendant cannot claim that age-verification is narrowly tailored when one of their own key studies suggests that parental-led content-filtering is a more effective alternative.
(c) Content filtering is more tailored to sexual material than age verification
Content-filtering also helps address the under-inclusivity issue. At the hearing, Defendant argued that if H.B. 1181 covered more websites, such as search engines, then Plaintiffs would instead argue that it is overbroad. The point is well- taken, but it misses a crucial aspect: the law would be overbroad because age verification is a broad method of enforcement. Under H.B. 1181, age verification works by requiring a user’s age at a website’s landing page. This forces Texas (and other states) to choose some broad threshold (e.g., one-third) for what percentage of a website must be sexual before requiring age verification. But this is not true for content filtering, which applies to the material on a webpage, not just the site as a whole. So users can browse Reddit, but will be screened from the sexual material within the site by the content filter. (Sonnier Decl., Dkt. # 31-1, at 3–4). Similarly, a user can search Google, but not encounter pornographic images. (Id.) This is the definition of tailoring: content filtering, as opposed to age verification, can more precisely screen out sexual content for minors without limiting access to other speech.
Content filtering is especially tailored because parents can choose the level of access. In other words, parents with an 8-year-old can filter out content inappropriate for an 8-year-old, while parents with a 17-year-old can filter out content inappropriate for a 17-year-old. Using age verification, a 17-year-old will be denied access to material simply because it might be inappropriate for a young minor. Content filtering, by contrast, allows for much more precise restrictions within age groups.
In general, content filtering also comports with the notion that parents, not
the government, should make key decisions on how to raise their children.
See
United States v. Playboy Ent. Grp., Inc.,
Content filtering allows parents to determine the level of access that their
children should have, and it encourages those parents to have discussions with their
children regarding safe online browsing. As the Principi article notes, it is this
combination that is most effective for preventing unwanted exposure to online
pornography. (Principi article, Dkt. # 27-2, at 9–10). Age verification, by contrast,
places little to no control in the hands of parents and caretakers.
[14]
Thus, content
filtering keeps the “parents’ claim to authority in their own household to direct the
rearing of their children . . . .” Id.:
see also
Brown,
(d) Content filtering is less burdensome and more effective Again, changes to the internet since 2003 have made age verification more—not less—cumbersome than alternatives. Parental controls are commonplace on devices. They require little effort to set up and are far less restrictive because they do not target adults’ devices.
Moreover, content filtering is likely to be more effective because it will place a more comprehensive ban on pornography compared to geography-based age restrictions, which can be circumvented through a virtual private network (“VPN”) or a browser using Tor. Adult controls, by contrast, typically prevent VPNs (or Tor-capable browsers) from being installed on devices in the first place. ( See Sonnier Decl., Dkt. # 31-1, at 3–4). And minors who wish to access pornography are more likely to know how to use Tor or VPNs. (Sonnier Decl., Dkt. # 5-1, at 45).
In addition, content filtering blocks out pornography from foreign websites, while age verification is only effective as far as the state’s jurisdiction can reach. This is particularly troublesome for Texas because, based on the parties here alone, foreign websites constitute some of the largest online pornographic websites globally. If they are not subject to personal jurisdiction in the state, they will have no legal obligation to comply with the H.B. 1181. Age verification is thus limited to Texas’s jurisdictional reach. Content filtering, by contrast, works at the device level and does not depend on any material’s country of origin.
Defendant disputes the effects of content filtering and argues that it is only as effective as the caretakers’ ability to implement it. But even as Defendant’s technical expert noted at the hearing, content filtering is designed for parents and caretakers to be easy to use in a family. The technical knowledge required to implement content-filtering is quite basic, and usually requires only a few steps. (Sonnier Decl., Dkt. # 31-1, at 3–4; Dkt. # 5-2, at 15–17). And the legislature made no findings regarding difficulty of use when it passed the law.
At the hearing, Defendant’s expert repeatedly emphasized that parents often
fail to implement parental controls on minors’ devices. But Defendant has not
pointed to any measures Texas has taken to educate parents about content filtering.
And more problematically, the argument disregards the steps Texas
could
take to
ensure content filtering’s use, including incentives for its use or civil penalties for
parents or caretakers who refuse to implement the tool. Indeed, draft bills of H.B.
1181 included such a measure, but it was abandoned without discussion. (Pls.’
Reply, Dkt. # 31, at 7). In Ashcroft v. ACLU, the Supreme Court gave this precise
argument “little weight,” noting that the government has ample means of
encouraging content filtering’s use.
(e) Texas has not met its burden
In sum, Plaintiffs have shown that content filtering offers a more tailored,
less restrictive method of ensuring that minors do not access adult sexual content.
This finding is not surprising, because Defendant offers zero evidence that the
legislature even considered the law’s tailoring or made any effort whatsoever to
choose the least-restrictive measure. To satisfy strict scrutiny, Texas must provide
evidence supporting the Legislature’s judgments.
See
Turner Broad. Sys., Inc. v.
F.C.C.,
Based on the evidence in the parties’ briefing, declarations, and hearing testimony, it is clear that age verification is considerably more intrusive while less effective than other alternatives. For that reason, it does not withstand strict scrutiny.
F. H.B. 1181 Unconstitutionally Compels Speech There is no doubt that H.B. 1181 forces the adult video companies into compelled speech. The law requires that they post three disclaimers, calling pornography “potentially biologically addictive [and] proven to harm human brain development” among other purported neurological issues. H.B. 1181 § 129B.004(1). The sites must also state, “Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.” Id. It must also state, “Pornography increases the demand for prostitution, child exploitation, and child pornography.” Id. Finally, sites must provide the number of a national mental health illness hotline. Id.
This is compelled speech. The government is forcing commercial sites to
speak and broadcast a proposition that they disagree with. The Supreme Court has
“held time and again that freedom of speech includes both the right to speak freely
and the right to refrain from speaking at all.” Janus,
i. Strict Scrutiny Applies to the Disclosures (a) The law targets speech by its content, not its commercial nature
Although H.B. 1181 targets for-profit websites, the speech it regulates is
likely non-commercial. First, H.B. 1181’s compelled disclosures are content-based,
regardless of whether they regulate commercial activity.
See
Cincinnati v.
Discovery Network,
scrutiny applies either when a law is content based on its face or when the purpose
and justification for the law are content based, a court must evaluate each question
before it concludes that the law is content neutral and thus subject to a lower level
of scrutiny.”). H.B. 1181 targets speech based upon the “subject matter [and] its
content.” Reed,
(b) The proposed targets are not commercial transactions
Even setting aside Discovery Network and Reed, H.B. 1181 does not
regulate commercial transactions related to speech. “[T]he core notion of
commercial speech [is] speech which does no more than propose a commercial
transaction.” Bolger v. Youngs Drug Prod. Corp.,
Volokh v. James is helpful. 22-CV-10195 (ALC),
Defendant argues that the speech is commercial because the landing pages
for the paid subscription sites “is nothing more than a place to click and then
follow a prompt to enter your payment information . . . .” (Def.’s Resp., Dkt. # 27,
at 16). Again, this ignores the content-based nature of the regulation in the first
place. But even setting that aside, the argument is dubious. First, existing
subscribers will have already paid, so the “proposed commercial transaction” will
only apply to new visitors. For returning subscribers, the page is not proposing a
transaction. Second, by way of example, several newspapers offer landing pages
(or paywalls) that force visitors to purchase a subscription before reading an
article. Yet it is doubtful that these websites would have diminished First
Amendment rights as a result.
[16]
It is the content the websites offer, and not the
existence of a paywall, that should determine its commercial nature, because paid
access that makes speech commercially viable is “inextricably intertwined” with
the speech itself. Riley,
Defendant is on slightly stronger footing as to the requirements for
advertisements, but the Court still finds them to be inextricably intertwined with
non-commercial speech. Plainly, the advertisements by themselves are commercial,
to the extent they link to paid-subscription websites, because they propose a
transaction. Under Bolger, courts should examine (1) an advertising format, (2)
reference to a specific product, and (3) economic motivation for publication.
Bolger v. Youngs Drug Prods. Corp.,
Setting aside the content-based nature of H.B. 1181 as a whole, the
advertisements likely constitute commercial speech, even when those
advertisements relate to protected speech. Id. at 66. Plainly, they meet the first and
third criteria of Bolger. However, it is a close call whether those advertisements are
inextricably intertwined with protected speech.
See
Dex Media W., Inc. v. City of
Seattle,
ii. The compelled disclosures do not survive strict scrutiny Assuming that strict scrutiny applies, the compelled disclosures do not pass constitutional muster. Under strict scrutiny, the law must be narrowly tailored to serve a compelling government interest. See, e.g. , Playboy Entm’t Grp., Inc., 529 U.S.at 813 (2000). As previously stated, the state has a compelling interest in preventing minors from accessing pornography. However, for many reasons, the disclosures are not narrowly tailored. First, and most critically, the disclosures do not target a minor’s access to pornography because a minor will be screened out by the age-verification mechanism. Assuming age-verification works, minors will not be able to access the content on pornographic websites. As a result, the law targets the group outside the state’s interest (i.e., adults who wish to view legal explicit materials). [17] A law cannot be narrowly tailored to the state’s interest when it targets the group exactly outside of the government’s stated interest.
More generally, the state has not met its burden that the disclosures are
narrowly tailored in general. They require large fonts, multiple warnings, and
phone numbers to mental health helplines. But the state provides virtually no
evidence that this is an effective method to combat children’s access to sexual
material. The messages themselves do not mention health effects on minors. And
the language requires a relatively high reading level, such as “potentially
biologically addictive,” “desensitizes brain development,” and “increases
conditioned responses.” H.B. 1181 § 129B.004. Quite plainly, these are not
disclosures that most minors would understand. Moreover, the disclosures are
restrictive, impinging on the website’s First Amendment expression by forcing
them to speak government messages that have not been shown to reduce or deter
minors’ access to pornography.
See
303 Creative LLC v. Elenis,
iii. H.B. 1181 Fails as a Commercial Speech Regulation (a) The regulations do not directly advance a substantial government interest
Even using commercial speech standards, the disclosures do not pass muster.
For a commercial speech regulation to survive, it must directly advance a
substantial government interest and be narrowly tailored so as not to be more
extensive than necessary. Cent. Hudson,
In its response, the state does not assert an interest in protecting
adults
from
non-obscene pornography, who will be the actual target of the messages. It is likely
that this interest would not be substantial or permissible. The mere fact that non-
obscene pornography greatly offends some adults does not justify its restriction to
all adults.
See
Carey v. Population Services Int’l,
This applies equally to commercial speech. C. Hudson,
In short, if the interest is in protecting children, then it may arguably be substantial, but it is advanced indirectly. If the interest is in changing adults’ attitudes on porn and sexuality, then the state cannot claim a valid, substantial interest. Either way, the compelled messages fail under Central Hudson.
(b) Zauderer does not apply
Defendant argues that H.B. 1181 regulates commercial speech in a manner
that is “truthful, non-misleading, and [requires] relevant disclosures” and is
therefore constitutional. (Def.’s Resp., Dkt. # 27, at 13 (citing Texas Med.
Providers Performing Abortion Servs. v. Lakey,
At the initial stage, H.B. 1181 still fails, because the government lacks a substantial interest that reasonably relates to the regulation. It is unreasonable to warn adults about the dangers of legal pornography in order to protect minors . But even assuming this was a cognizable interest, Zauderer would still not apply. First, H.B. 1181’s messages are unduly burdensome. The requirement requires no fewer than four distinct messages to be presented each time a person visits the landing page or advertisement. The disclosures must be in 14-point font size, which is again unclear and burdensome because digital fonts on webpages are not measured in points. This is particularly difficult for advertisements, because they rarely take up an entire page. Often, online advertisements are limited to a small sliver of a webpage. Requiring large font sizes in the context of advertisements would likely be overly burdensome because they risk swallowing up the entire advertisement itself. See Ibanez v. Fla. Dept. of Bus. and Prof. Reg., Bd. of Accountancy, 512 U.S. 136, 146 (1994) (holding a compelled message was unconstitutional when it “effectively rule[d] out” the initial message). And the warnings themselves are somewhat deceptive. Defendant has not shown that the Texas Health and Human Services Commission has actually endorsed the message or made the relevant medical findings, despite requiring speakers to display “TEXAS HEALTH AND HUMAN SERVICES WARNING” three separate times in all caps. [18] Because of the size and repeated nature of the warnings, as well as their potential for misleading visitors, they are likely to be unduly burdensome.
Second, the disclosures are deeply controversial. To receive the more lenient
Zauderer standard, the message at issue must be “purely factual and
uncontroversial information.” Id. Outside of factual and non-controversial
information, Zauderer’s relaxed standard does not apply.
See
Hurley v. Irish–Am.
Gay, Lesbian and Bisexual Group of Boston, Inc.,
The Court assumes, at the preliminary injunction stage, that the health disclosures—as opposed to the mental health hotline—are “purely factual.” [19] Regardless of their accuracy, the health disclosures purport to show scientific findings. The mental health line, however, is not factual. It does not assert a fact, and instead requires companies to post the number of a mental health hotline. The implication, when viewers see the notice, is that consumption of pornography (or any sexual material) is so associated with mental illness that those viewing it should consider seeking professional crisis help. The statement itself is not factual, and it necessarily places a severe stigma on both the websites and its visitors. [20]
Much more seriously, however, is the deep controversy regarding the benefits and drawbacks of consumption of pornography and other sexual materials. Just like debates involving abortion, pornography is “anything but an uncontroversial topic.” Natl. Inst. of Fam. and Life Advocates v. Becerra, 138 S. Ct. 2361, 2372 (2018). Defendant’s own exhibit admits this. (Principi article, Dkt. # 27, at 2 (“Scientific evidence supporting the negative effects of exposure to [sexually explicit internet material] is controversial, and studies addressing this topic are difficult because of important methodological discrepancies.”)). As a political, religious, and social matter, consumption of pornography raises difficult and intensely debated questions about what level and type of sexual exposure is dangerous or healthy. See, e.g. , Jeneanne Orlowski, Beyond Gratification: The Benefits of Pornography and the Demedicalization of Female Sexuality , 8 Modern Am. 53 (Fall 2012) (arguing for constitutional protection of non-obscene pornography); Andrea Dworkin, Against the Male Flood: Censorship, Pornography, and Equality , 8 Harv. Women’s L.J. 1 (1985) (arguing, among other things, that pornography depicts and leads to the subordination of women); Athanasia Daskalopoulou & Maria Carolina Zanette, Women’s Consumption of Pornography: Pleasure, Contestation, and Empowerment , 54 Sociology 969 (2020) (noting that female consumption of pornography is both “empowering and disciplining” for women); Samuel L. Perry, Banning Because of Science or In Spite of it? Scientific Authority, Religious Conservatism, and Support for Outlawing Pornography, 1984–2018 , 100 Social Forces 1385 (March 2022) (examining scientific citations in anti-pornography advocacy and suggesting that the anti- pornography movement is growing “more connected to religious conservatism than views about scientific authority”). The intense debate and endless sociological studies regarding pornography show that it is a deeply controversial subject. The government cannot compel a proponent of pornography to display a highly controversial “disclosure” that is profoundly antithetical to their beliefs.
Beyond the differing moral values regarding pornography, the state’s health disclosures are factually disputed. Plaintiffs introduce substantial evidence showing that Texas’s health disclosures are either inaccurate or contested by existing medical research. Dr. David Ley, for example, is a clinical psychologist in the states of New Mexico and North Carolina who specializes in treating sexuality issues. (Ley Decl., Dkt # 5-3, at 1–4). As Ley states, “There currently exists no generally accepted, peer-reviewed research studies or scientific evidence which indicate that viewing adult oriented erotic material causes physical, neurological, or psychological damage such as ‘weakened brain function’ or ‘impaired brain development.’” (Id.) Included in Ley’s declaration are more than 30 psychological studies and metanalyses contradicting the state’s position on pornography. (Id.) Moreover, Ley points out that the mental health hotline number is unsupported because the standard manual of classification of mental disorders, the DSM-5-TR, does not consider pornography addiction as a mental health disorder, and in fact, explicitly rejected that categorization as unsupported in 2022. (Id. at 5–6). Finally, the hotline, which links to the Substance Abuse and Mental Health Services Administration helpline, will be of little to no aid because they are likely not trained to deal with pornographic use or addiction. (Id. at 5–7).
Defendant, meanwhile, introduces evidence suggesting that pornography is dangerous for children to consume. One study of boys in Belgium, for example, suggests that “an increased use of Internet pornography decreased boys’ academic performance six months later.” (Bouché Decl. Dkt. # 26-8, at 2). Another meta- analysis suggests that pornography is harmful to adolescents but encourages parental intervention alongside content filtering to mitigate these harms. (Principi Article, Dkt. #. 27-6, at 9–10). These studies, however, are inapplicable to the compelled disclosures, which make no mention of the effects on children and are primarily targeted at adults.
Each portion of the compelled message is politically and scientifically controversial. This is a far cry from cigarette warnings. Unlike cigarettes, pornography is the center of a moral debate that strikes at the heart of a pluralistic society, involving contested issues of sexual freedom, religious values, and gender roles. And the relevant science, shows, at best, substantial disagreement amongst physicians and psychologists regarding the effects of pornography. [21] Even if the disclosures are commercial speech, Zauderer cannot apply.
G. Section 230
Separate from the First Amendment claim, Plaintiffs argue that Section 230 of the CDA preempts H.B. 1181. (Mot. Prelim. Inj., Dkt. # 5, at 17–18). The CDA states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). “Websites are the most common interactive computer services.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019).
In Doe v. MySpace, Inc., the Fifth Circuit held that “Congress provided
broad immunity under the CDA to Web-based service providers for all claims
stemming from their publication of information created by third parties[.]” 528
F.3d 413, 418 (5th Cir. 2008). This includes sexual materials.
See, e.g.
,
Backpage.com, LLC v. Cooper,
Defendant seeks to differentiate MySpace because the case dealt with a
negligence claim, which she characterizes as an “individualized harm.” (Def.’s
Resp., Dkt. # 27, at 19). MySpace makes no such distinction. The case dealt with a
claim for individualized harm but did not limit its holding to those sorts of harms.
Nor does it make sense that Congress’s goal of “[paving] the way for a robust new
forum for public speech” would be served by treating individual tort claims
differently than state regulatory violations. Bennett v. Google, LLC,
The Fifth Circuit “and other circuits have consistently given [Section 230(c)]
a wide scope.” Google, Inc. v. Hood,
Next, Defendant argues that Section 230 does not apply because only the
domestic websites are protected by the law, and those websites only post their own
content—not those of third parties. (Def.’s Resp., Dkt. # 27, at 19–20 (citing AOSI,
“[W]e conclude from the text of Section 230, particularly the words “shall be treated,” that its primary purpose is limiting civil liability in American courts. The regulated conduct—the litigation of civil claims in federal courts— occurs entirely domestically in its application here. We thus hold that the presumption against extraterritoriality is no barrier to the application of Section 230(c)(1) in this case.”
Thus, the foreign website Plaintiffs may claim the protection of Section 230
when failing to do so would subject them to imminent liability for speech that
occurs in the United States. Force,
As Defendant notes, the second element of immunity under § 230(c)
“requires that the claims are all based on content provided by
another
information
content provider.” Wells v. YouTube, LLC, 3:20-CV-2849-S-BH, 2021 WL
2652966, at *3 (N.D. Tex. May 17, 2021) (emphasis added),
adopted
3:20-CV-
2849-S-BH,
Because certain Plaintiffs are likely to succeed on the Section 230 claims,
they are entitled to a preliminary injunction. “[S]ection 230 must be interpreted to
protect websites not merely from ultimate liability, but from having to fight costly
and protracted legal battles.” Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC,
Specifically, Plaintiffs MG Freesites LTD, WebGroup Czech Republic, NKL Associates, s.r.o., and MediaMe SRL shall be entitled to an injunction under Section 230.
IV. DISCUSSION – HARM AND EQUITIES A. Irrepable Harm
Plaintiffs are likely to suffer irreparable harm in the absence of an
injunction. To show irreparable harm, “[t]he plaintiff need show only a significant
threat of injury from the impending action, that the injury is imminent, and that
money damages would not fully repair the harm.” Humana, Inc. v. Avram A.
Jacobson, M.D., P.A.,
2023).
Without a preliminary injunction, Plaintiffs will suffer several types of
irreparable harm. First, they will endure non-recoverable compliance costs. Under
Fifth Circuit precedent, “[N]onrecoverable costs of complying with a putatively
invalid regulation typically constitute irreparable harm.” Id. (citing Louisiana v.
Biden,
Defendant’s argument directly contradicts the Fifth Circuit’s instruction in
Restaurant Law. Defendant states that “Plaintiffs provide insufficient evidence to
show that any alleged monetary losses are significant” in light of their large global
operations. (Def.’s Resp., Dkt. # 27, at 22). This runs headfirst into the Restaurant
Law’s holding that “the key inquiry is ‘not so much the magnitude but the
irreparability.’”
Second, Plaintiffs will incur irreparable harm through violations of their
First Amendment rights. “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.
Burns,
Irreparable harm is particularly acute in the context of compelled speech
because the association of a speaker with the compelled message cannot be easily
undone.
See
Barnette,
Defendant argues that these losses are “compensable.” (Def.’s Resp., Dkt. # 27, at 21–22). But to be compensable, damages must be capable of calculation or estimation. Innovative Manpower Sols., LLC v. Ironman Staffing, LLC, 929 F.
Supp. 2d 597, 620 (W.D. La. 2013). Here, they are not, because the loss of
goodwill and visitors may endure for years beyond this litigation. Second, and
more seriously, Defendant ignores that the state is entitled to sovereign immunity
from monetary claims. VanDerStok v. Garland, No. 4:22-CV-00691-O, 2022 WL
4809376, at *3 (N.D. Tex. Oct. 1, 2022) (citing Wages & White Lion Invs., L.L.C.
v. FDA,
Finally, in the context of Section 230, Plaintiffs will suffer irreparable harm by having to expend non-recoverable resources litigating lawsuits where federal law expressly prohibits causes of action from being brought. 47 U.S.C. § 230(e)(3).
In short, 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. Defendant suggests this injury is speculative and not- imminent, (Def.’s Resp., Dkt. # 27, at 21–23), but this is doubtful. H.B. 1181 takes effect on September 1—mere days from today. That is imminent. Nor is the harm speculative. The Attorney General has not disavowed enforcement. To the contrary, her brief suggests a genuine belief that the law should be vigorously enforced because of the severe harms purportedly associated with what is legal pornography. (Id. at 1–5). It is not credible for the Attorney General to state that “[p]orn is absolutely terrible for our kids” but simultaneously claim that they will not enforce a law ostensibly aimed at preventing that very harm. Because the threat of enforcement is real and imminent, Plaintiffs’ harm is non-speculative. It is axiomatic that a plaintiff need not wait for actual prosecution to seek a pre- enforcement challenge. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). In short, Plaintiffs have more than met their burden of irreparable harm.
B. The Balance of Harms and Public Interest Favor an Injunction
“[E]nforcement of an unconstitutional law is always contrary to the public
interest.” Gordon v. Holder,
C. Scope of the Injunction
The Court finds that H.B. 1181 is unconstitutional on its face. The statute is
not narrowly tailored and chills the speech of Plaintiffs and adults who wish to
access sexual materials. “[I]f the arguments and evidence show that a statutory
provision is unconstitutional on its face, an injunction prohibiting its enforcement
is proper.” Whole Woman’s Health v. Hellerstedt,
V. CONCLUSION
At the core of Defendant’s argument is the suggestion that H.B. 1181 is
constitutional if the Supreme Court changes its precedent on obscenity. Defendant
may certainly attempt a challenge to Miller and Reno at the Supreme Court. But it
cannot argue that it is likely to succeed on the merits as they currently stand based
upon the mere possibility of a change in precedent. Nor can Defendant argue that
the status quo is maintained at the district court level by disregarding Supreme
Court precedent. The status quo has been—and still is today—that content filtering
is a narrower alternative than age verification. Ashcroft v. ACLU,
Because the Court finds that H.B. 1181 violates the First Amendment of the United States Constitution, it will GRANT Plaintiffs’ motion for a preliminary injunction, (Dkt. # 5), as to their First Amendment claims and GRANT the motion in part and DENY the motion in part as to their Section 230 claims.
Defendant Angela Colmenero, in her official capacity as Attorney General for the State of Texas, is preliminarily ENJOINED from enforcing any provision of H.B. 1181.
IT IS SO ORDERED.
DATED: Austin, Texas, August 31, 2023.
David Alan Ezra Senior United States District Judge
Notes
[1] As of the date of this order, Defendant has not challenged Jane Doe’s pseudonymity. Because her
standing is not independently necessary for Plaintiffs’ motion to succeed and because Doe has presented
facially legitimate concerns regarding intimidation, the Court will allow her to proceed pseudonymously
at this early and expedited stage.
See
U.S. Navy SEALs 1-26 v. Austin,
[2] Defendant repeatedly suggests that Plaintiffs should not able to avail themselves of First Amendment
protections when they have not availed themselves of personal jurisdiction in Texas. (Def.’s Resp., Dkt.
#27, at 7, 21). To this end, they rely on a single district court opinion where a foreign plaintiff was
determined not to be subject to personal jurisdiction for posting online pornography as related to child
sex-trafficking claims. Doe v. WebGroup Czech Republic, No. 221CV02428VAPSKX,
[3] In particular, Miller requires that patently offensive material be so defined by the applicable state statute. Id. That cannot be the case here for H.B. 1181, which defines material only with reference to whether it is obscene for minors.
[4]
See, e.g.
, United States v. Cary,
[5] It is worth further noting that H.B. 1181 does not operate like the sort of “strip club” restriction that Defendant analogizes to. It does not just regulate the virtual equivalent of strip clubs or adult DVD stores. Rather, a more apt analogy would be that H.B. 1181 forces movie theaters to catalog all movies that they show, and if at least one-third of those movies are R-rated, H.B. 1181 would require the movie theater to screen everyone at the main entrance for their 18+ identification, regardless of what movie they wanted to see. Defendant is fully entitled to seek appellate review and reconsideration of existing precedent. But the law is still broader than even those time, place, and manner restrictions.
[6] (Amicus Br., Dkt. # 29-2).
[7] H.B. 1181 is even more problematic than COPA, because it defines “minor” as all individuals under 18,
while COPA set the limit at 17.
See
ACLU v. Reno,
[8] This interpretation is problematic because it is severely underinclusive. If the Attorney General adopts the narrower definition, then a website could quite easily evade the law by simply adding non-sexual material up to the point that it constitutes at least two-thirds of the site. Indeed, the cost of hosting additional content may be much lower than the costs of age verification and compelled speech. See (Compl., Dkt. # 1, at 24 (raising the possibility that “a link to all the anodyne content in the local public library” could circumvent the law)). And at that point, the law would effectively become moot, doing little to regulate adult video companies beyond forcing them to host non-sexual materials. If the Attorney General opts for the broader interpretation, then the law encounters other grave challenges by sweeping far beyond its purported effects.
[9] The Supreme Court’s affirmance of the Third Circuit’s decision in ACLU v. Ashcroft focused on the type of restriction used, not whether the law was narrowly tailored. See Ashcroft v. ACLU, 542 U.S. at 665 (“[W]e decline to consider the correctness of the other arguments relied on by the Court of Appeals.”). However, upon remand, the Third Circuit again held that the law was not narrowly tailored in a final decision on the merits. ACLU v. Mukasey,534 F.3d at 197–98 (“[W]e are quite certain that . . . the Government has not met its burden of showing that [the law] is narrowly tailored so as to survive strict scrutiny analysis and thereby permit us to hold it constitutional.”). The Supreme Court declined a petition for writ of certiorari as to the nationwide permanent injunction. Accordingly, while the ACLU discussion of narrow tailoring is not strictly binding authority, the Court affords it substantial weight.
[10] Plaintiffs also ask the Court to hold that H.B. 1181 is unconstitutionally overbroad. In general, “[t]he
overbreadth doctrine is strong medicine” that should be employed “only as a last resort.” Los Angeles
Police Dept. v. United Reporting Pub. Corp.,
[11] If anything, the language from ACLU v. Ashcroft is more relevant to today than it was when it was written, given the ubiquity of modern technology.
[12] The attorney general has explicitly taken the position that state laws remain in place even when held
unconstitutional. Fund Texas Choice v. Paxton, 1:22-CV-859-RP (W.D. Tex. filed Aug. 24, 2022) (Def.’s
Resp., Dkt. # 33, at 28 (citing Pidgeon v. Turner,
[13]
See
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
[14] Parents may only allow access through age verification by providing their ID or credentials to a minor. This is unlikely in light of the obvious awkwardness of a teenager asking their parents’ permission each time they wish to view sexual content.
[15] This applies even if, as Defendant argues, Plaintiffs produce only obscene material.
[16] Similarly, it is doubtful that the government could regulate shrink-wrapped books in a bookstore differently than others because those books require a transaction before accessing the content therein.
[17] The state has not argued a compelling interest in preventing adults from accessing pornography. Indeed, Defendant argues that the law is permissible precisely because it does not restrict adult access. (Def.’s Resp., Dkt. # 27, at 13).
[18] Ironically, while Zauderer allowed the government to regulate deceptive speech, here, it is the
government’s message that is potentially deceptive.
[19] In particular, whether the disclosures are “purely factual” depends on whether scientifically contested
statements are still “factual.”
See, e.g.
, Nat’l Ass’n of Manufacturers v. S.E.C.,
[20] For an expression to be purely factual, “it must be information with an objective truth or existence.”
R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 6:20-CV-00176,
[21] At worst for Texas, the science shows that many of their claims are entirely without support. For example, one disclosure requires websites to state that pornography “desensitizes brain reward circuits [and] increases conditioned responses” for viewers. H.B. 1181 129B.004. Defendant’s study, however, shows that “sensation seeking” is predictive of pornography consumption, not the other way around. (Bouché Decl. Dkt. # 26-8, at 2). No other studies appear to support the position.
[22] Even if Section 230 did apply exclusively to individual harms, the law would still be preempted, because H.B. 1181 creates increased penalties when an individual minor accesses a violating website. H.B. 1181 § 129B.006(b). Pure regulatory violations lead to $10,000.00 in damages, but the state imposes an additional $240,000.00 in damages for a minor’s access to the website.
[23] The Ninth Circuit came to a similar conclusion, finding that the “relevant conduct occurs where
immunity is imposed . . . .” Gonzalez v. Google LLC,
[24] As previously stated, the injunction for Plaintiffs’ Section 230 claims shall apply only to Plaintiffs MG Freesites LTD, WebGroup Czech Republic, NKL Associates, s.r.o., and MediaMe SRL.