Texas Can Enforce Online Porn Age-Check Law, Beating Injunction

Texas can keep enforcing a law that requires online porn sites to check visitors’ ages, the Fifth Circuit ruled on Thursday, lifting a district court’s preliminary injunction blocking the law.

The new law doesn’t violate the First Amendment because it serves the government’s “legitimate interest” of keeping children from viewing porn, Judge Jerry E. Smith wrote in a Thursday opinion.

The Texas law (HB 1181) requires companies distributing “harmful” and “obscene” material on the internet to verify each user’s age and carries a fine of $10,000 per violation. Attorney General Ken Paxton began enforcing the law in February, bringing a $1.6 million lawsuit against the company that owns the adult content site, PornHub.

In overturning the preliminary injunction, the Fifth Circuit signaled that the case brought by the Free Speech Coalition, which represents the adult entertainment industry, isn’t likely to succeed on the merits.

Judge Patrick E. Higginbotham argued in a partial dissent that the law would also restrict speech that is constitutionally protected for adults—like romance novels, scenes from the popular TV show “Game of Thrones,” and Marlon Brando movies. “Such action ‘is to burn the house to roast the pig,’” Higginbotham wrote.

Smith struck back at Higginbotham in his majority opinion, saying the dissent “implies that the invention of the Internet somehow reduced the scope of the state’s ability to protect children.”

“That is a dubious principle without support in existing Supreme Court caselaw,” he wrote.

Texas temporarily regained its ability to enforce the age-check law in November, after the Fifth Circuit paused the district court’s preliminary injunction while Texas appealed the lower court’s move.

But the state still can’t enforce part of the law that says porn websites must include health warnings on landing pages and advertisements, according to the opinion. The Fifth Circuit kept the district court’s injunction over the health disclaimers intact, saying the required messages unconstitutionally forced speech.

Quinn Emanuel Urquhart & Sullivan LLP represents the Free Speech Coalition.

The case is Free Speech Coal. v. Paxton, 5th Cir., No. 23-50627, 3/7/24.