“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to
pornography,” the court explained.
• “Therefore, the age-
verification requirement does not violate the First Amendment.”
– Free Speech Coal., Inc. v. Paxton, Fifth Circuit Court of Appeals
Texas House Bill 1181 (“HB 1181”) was signed into law by Governor Greg Abbott on June 12, 2023. This bill requires commercial pornographic websites to “verify the age of their visitors and to display health warnings about the effects of the consumption of pornography.”
Importantly, the bill only regulates “commercial entities that knowingly and intentionally publish or distribute material on an internet website […] more than one-third of which is sexual material harmful to minors.” The bill is part of a growing movement to protect children from pornography by increasing barriers to access, mainly by ensuring the viewer is of appropriate age. But how does the enactment of such laws affect ACLU v. Ashcroft I| and First Amendment rights? The Fifth Circuit provided an answer.
Ultimately, the Fifth Circuit found that the age-verification requirement passed rational basis review pursuant to Ginsberg v. New York. Ginsberg was the first case to place the regulation under rational basis review and to allow more government regulation of sexual content in order to protect minors.
Ashcroft Il entered the courts several years later, but the Ashcroft Il Court was not asked to determine what level of scrutiny was applicable to the law. Since an argument regarding the proper level of scrutiny was not brought to the Court, the Court did not address the issue. The Supreme Court upheld Ginsberg after Ashcroft Il, finding that states prohibiting minors from purchasing sexual content was not irrational. Since the level of scrutiny was at issue in this decision, the Fifth Circuit applied rational basis which the State law ultimately passed. Meanwhile, the Communications Decency Act does not preempt HB 1811 because § 230 does not protect the promotion of
“offensive material.” Section 230 only protects the adult content sites if a minor circumvents the age verification and health warnings, resulting in harm by a third-party.
Privacy concerns were of no issue to the Fifth Circuit as age verification laws are used in a similar manner to enter strip clubs and buy alcohol and cigarettes. The bill even restricted companies from saving individuals identifications by means of $10,000 fines for each unlawful action. Here, the Fifth Circuit was concerned more with the effects of pornography on children. The research showed minors who were exposed to pornography suffered negative consequences including increased dissatisfaction about one’s image, symptoms of depression, assimilation to aggressive models, lower performance in school, and more. The limited effect of the law on plaintiffs and the proven effects of pornography on minors further led the Fifth Circuit to find the age-verification requirement as constitutional.
Ultimately, the dissent found the methods unconstitutional but agreed the issues needed to be addressed. The dissent pointed to the plaintiffs’ alternative methods as constitutionally sufficient methods of age verification: (1) “requiring Internet service providers […] to block specified content until adults opt-out of the block; and (2) ‘content filtering’ by implementing adult controls on children’s devices.” Generally, the dissent seeks to place the “onus on parents to monitor children’s viewing habits.”
Since the Fifth Circuit released its opinion, Pornhub shut down its website in Texas arguing that the restrictions put minors and users’ privacy at risk. Others, such as the ACLU, still contend that age verification bills are unconstitutional, not full-proof, anti-privacy, and could lead to the rise of websites with far fewer safety measures. Regardless of such complaints, nine states have enacted age verification legislation thus far, and twenty-one more states are in the process of passing similar legislation. More lawsuits are destined to come in the future leading to more federal Circuit Court opinions, but, for now, children in at least nine states will be further protected from adult content than before.
CITATIONS
• Free Speech Coal., Inc. v. Paxton 2024 U.S. App. LEXIS 5555:
https://plus.lexis.com/api/permalink/bc113bc1-06ea-4cc9-a7a0-cb0753e04bab/?context=1530671.
• Lauren Irwin, Pornhub Disables Website In Texas After AG Sues For Not Verifying Users’ Ages, THE HILL (Mar. 14, 2024 4:13 PM)
https://thehill.com/homenews/state-watch/4532842-pornhub-disables-website-in-texas-after-ag-sues-for-not-verifying-users-ages/.
• Emily Washburn, Pornography Age Verification Laws: What They Are and Which States Have Them, DAILY CITIZEN (Mar. 15, 2024), https://dailycitizen.focusonthefamily.com/pornography-age-verification-laws-what-they-are-and-which-states-have-them/.
• Age Verification Bill Will Not Keep Your Kids Safer, Will Risk Privacy,
ACLU South Dakota (Mar. 4, 2024),
https://www.aclusd.org/en/news/age-verification-bill-will-not-keep-your-kids-safer-will-risk-privacy.
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