Fifth Circuit Upholds Texas' Age Verification Requirement for Adult Websites

A contentious Texas law that governs porn websites and tries to control the age of the people who can access them has been legally disputed on freedom of speech theories. Now, the Fifth Circuit Court of Appeals has chimed in. They’ve effectively upheld the meatier part of the statute, although they struck down a portion of it as unconstitutional. Let’s take a look at the law and what the court had to say to its challengers.

New Law Imposes Safety Measures for Porn Sites

Texas passed a bill called H.B. 11811 that governs porn sites and was scheduled to go into effect last September. It requires commercial pornographic websites to verify the age of visitors and also to display certain “health warnings” about the effects of consuming pornography. Texas was not alone in passing such a law; seven other states (Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah, and Virginia) also passed similar laws recently.

The law covers only commercial websites that intentionally publish or distribute via the internet, including social media platforms. Websites where people upload their own sexually explicit images or where the owners don’t know about the porn on their site don’t count. But not even every company that knowingly puts up porn on their site qualifies. The law says that it only applies to sites where at least one-third of the material is “sexual material harmful to minors” (and it goes on to define what this phrase means). Of course, most sites doing business in porn would conceivably be covered by the statute.

The statute has two requirements. Under the first requirement, they must “use reasonable age verification methods” to limit their material to adults. They may choose their preferred age verification method, which includes outsourcing to a third party, checking government-issued IDs, and using digital identification. They also aren’t allowed to retain identifying information after checking.

Second, the companies have to display certain warnings and notices on the landing page of their sites, in at minimum a size 14 font (which is bigger than the text you’re currently reading). The required health warnings come from the Texas Department of Health and Human Services and must read: “Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function. Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses. Pornography increases the demand for prostitution, child exploitation, and child pornography.” The sites also have to provide a notice and phone number for the U.S. Substance Abuse and Mental Health Services Administration’s helpline.

Porn Companies Challenge the New Law

Before the law could take effect, a number of actors in the porn industry challenged the law in court. An adult industry trade association called Free Speech Coalition, several companies (both American and foreign) that make and distribute porn, and one porn content creator all brought a lawsuit against Texas in federal court, asking for an injunction to stop the enforcement of the law. The court granted the preliminary injunction. The lower court thought it was appropriate to grant because it concluded that both components of the new law — the age-verification requirement and the warning requirement — probably violated both the First Amendment of the U.S. Constitution and a federal law called the Communications Decency Act (CDA).

Texas appealed. The Fifth Circuit agreed in some ways with the lower court but disagreed in others. While they disagreed that the age verification requirement violated either the Constitution or the CDA, they did find that the health warning requirement went against the CDA.

Fifth Circuit Upholds Age Verification

The plaintiffs from the porn industry who challenged the law argued that the law brings an unfair and too-large burden on adults. The circuit court responded that since “it is never obvious whether an internet user is an adult or a child, any attempt to identify the user will implicate adults in some way.” Importantly, the content on the sites in this case was available to both adults and youths. The court pointed out that previous cases have settled that the government can impose stricter rules on the content available to youths than that available to adults. It is also okay if in restricting content available to youths, the government imposes a burden on adults, so long as it isn’t too broad and was appropriately tailored to target minors.

For example, the court pointed out that it had previously struck down a different statute because it prohibited all films containing any uncovered buttocks or breasts, “irrespective of context or pervasiveness.” Seeing as that statute “would bar a film containing a picture of a baby’s buttocks,” the court found it too “sweeping.” But, the court said, that wasn’t an issue with H.B. 1181, because it had been tailored to material obscene for minors, and the court was convinced that it was “a reasonable means of protecting minors from this type of visual influence.”

The court used a lower standard called the “rational basis review” in which, for a law to stand as constitutional, it must only be rationally related to the government’s legitimate interest, rather than having to be the best means of doing so. The court found that the state of Texas had a legitimate interest in preventing a minor's access to pornography and that the age verification requirement was sufficiently related to furthering this goal. Thus, the age verification can stand.

Health Warning Requirement Struck Down

But the court did not uphold the health warnings requirement. It found that such warnings “compel speech,” which is not permissible under the Constitution.

The First Amendment protects commercial entities, although the government may regulate commercial speech more heavily than non-commercial speech. The right to free speech under this amendment includes both the right to speak and the right to refrain from speaking.

The court noted: “The health warnings, taken as a whole, might advance the state’s stated interests . . . But Texas must meet a higher standard than ‘might.’” Texas failed to show that the health warnings will be effective in reducing the harm of pornographic material on websites to minors. Even if scientific findings supported the warnings, the government did not show that the warnings will discourage minors who have already gotten around the age restrictions from accessing pornography. The court also pointed out that even if the minors do see the warnings, their language “seems beyond the average child’s reading comprehension ability.”

Upshot: Statute Mostly Still Effective

So, the court struck down the health warnings requirement of the statute but upheld the age verification. Notably, the part of the law that still holds — the age screening — is the part that has the biggest effect on adult website users. The upshot? It’ll theoretically be tougher to access porn sites for Texan youth.

Related Resources

• Federal Judge Stops Arkansas Social Media Age Verification Law (FindLaw's Courtside)
• Understanding the Legal Issues for Social Networking Sites and Their Users (FindLaw's Legal Technology)
• First Amendment Limits: Child Pornography (FindLaw's Constitution Pages)