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Porn age verification law is unconstitutional, says judge

Porn age verification law is unconstitutional, says judge

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‘The law will allow the government to peer into the most intimate and personal aspects of people’s lives.’

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Image: James Bareham / The Verge

A federal judge has blocked a Texas law that would require age verification and health warnings for pornographic websites, calling it unconstitutional and poorly defined. In a preliminary injunction decision released today, Judge David Ezra ruled in favor of the Free Speech Coalition, an adult industry trade association. The ruling prevents Texas from enforcing HB 1181, one of multiple state-level bills that would require age verification for accessing adult content online.

Ezra, a Ronald Reagan-appointed district judge, said HB 1181 had numerous problems that could limit internet users and adult content creators’ First Amendment rights. “The restriction is constitutionally problematic because it deters adults’ access to legal sexually explicit material, far beyond the interest of protecting minors,” Ezra’s ruling says. It cites previous decisions blocking the Child Online Protection Act, a 1990s law that was similarly intended to block minors from adult content online. It also draws on the Supreme Court’s ruling in Reno v. ACLU, which struck down most of the Communications Decency Act, a federal law regulating online pornography.

The injunction repeats frequent criticisms of online age verification, particularly the chilling effects of asking people to identify themselves through potentially insecure verification systems.

“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.”

As Ezra notes, Texas still hasn’t repealed a law against sodomy, making it particularly fraught to hand over identification for something like a gay porn site. “Given Texas’s ongoing criminalization of homosexual intercourse, it is apparent that people who wish to view homosexual material will be profoundly chilled from doing so if they must first affirmatively identify themselves to the state,” the ruling says.

HB 1181 applies restrictions to sites that are deemed to be composed of one-third pornographic content — a bar similar to that of other states like Louisiana, which has an age-gating rule that went into effect around the start of 2023. Ezra concludes the law was drafted in a way that simultaneously overlooks major places where minors are likely to access porn — like adult-oriented communities on Reddit, which likely doesn’t meet the bar for a “pornographic” site overall — and threatens age-appropriate resources for older minors, like sites with sexual health information. The risks, Ezra concludes, don’t justify using strict age verification when other options like parent-implemented content filters are available. “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,” the ruling says.

And finally, the ruling objects to Texas’ requirement that sites post factually debatable disclaimers about the alleged dangers of pornography, calling it unconstitutional compelled speech.

Texas will likely appeal the decision, kicking it up to a federal appeals court that could decide the fate of HB 1181. But for now, it’s a blow against a broad movement to lock down sites with sexual content — and a fairly scathing one at that.