A Texas law requiring age verification on porn sites is unconstitutional, judge rules

A federal judge has blocked a Texas law requiring age verification and a health warning for viewing pornographic websites, a day before the law was set to take effect.

U.S. District Judge David Ezra found that the law violates First Amendment free speech rights and is too vague, in a ruling on Thursday in favor of the Free Speech Coalition, an adult entertainment industry trade association that filed the lawsuit.

Ezra said the age verification component in House Bill 1181, signed by Gov. Greg Abbott in June, "is constitutionally problematic because it deters adults' access to legal sexually explicit material, far beyond the interest of protecting minors."

The judge's ruling prevents the state attorney general, the defendant in the case, from enforcing the law. The attorney general's office has filed a notice of appeal with the Fifth Circuit U.S. Court of Appeals in Louisiana.

Ezra said age verification also raises privacy concerns. One of the two methods allowed for age verification under the law is through government-issued ID; given the government is not required to delete data regarding access, the ruling said, "People will be particularly concerned about accessing controversial speech when the state government can log and track that access."

"In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech," Ezra added.

Having to identify oneself in order to access a gay porn site, for example, could be particularly troubling in a state that still hasn't repealed a law banning sodomy, as the ruling noted.

"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 said.

Beyond state monitoring concerns, the ruling also notes the deterring effects caused by the threats of exposing sensitive information through potential leaks or hacks.

In addition to age verification, the law also requires porn sites to post warnings about the alleged psychological dangers of viewing porn, as well as the number to a helpline for people with mental health and substance abuse issues.

Although the warnings carry the label "Texas Health and Human Services," the ruling states, it's not apparent that the Texas Health and Human Services Commission has announced such findings.

The judge said the "state provides virtually no evidence that this is an effective method to combat children's access to sexual material" and that the warnings include language that most minors would not understand.

Louisiana's age-verification law for porn sites, which went into effect in January, has kicked off a wave of similar legislation in several states. Texas is the latest of at least six states to pass such a law. Like Louisiana, the Texas law would apply to websites where one-third of the content is considered pornographic.

Social media sites, however, would be exempt from the age restrictions because they likely do not meet the one-third sexual material standard, the ruling said. That leaves minors able to view porn on Reddit communities, Tumblr blogs and Instagram pages, for example, that are dedicated to explicit sexual content, the judge said. Running image searches on search engines also wouldn't be restricted under the law.

"Although the state defends H.B. 1181 as protecting minors, it is not tailored to this purpose," Ezra said. "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." [Copyright 2023 NPR]