ACLU Blasts Texas Online Age-Check Law in Fifth Circuit Brief

A Texas law requiring websites to verify visitors’ ages before providing them with adult content violates the First Amendment and should be blocked, free-speech advocates told a federal appeals court.

The Texas law, HB 1181, would burden the right of adults to view lawful sexual content, rob website visitors of their right to anonymity, and compel providers of adult content to express the state of Texas’ viewpoint on the allegedly harmful effects of pornography, according to a friend of the court brief docketed Thursday with the US Court of Appeals for the Fifth Circuit.

A US district court temporarily halted enforcement of the Texas law Aug. 31, the day before it was set to take effect, ruling that the plaintiff, a group that represents the adult entertainment industry, was likely to prevail in its argument that the law should be struck down on First Amendment grounds.

Arkansas was also recently ordered to pause enforcement of a similar age-verification law aimed at social-media platforms such as TikTok and Instagram.

The American Civil Liberties Union was joined on the brief by the Center for Democracy & Technology, the Electronic Frontier Foundation, the Foundation for Individual Rights and Expression, the Media Coalition Foundation, and Techfreedom.

Texas opposed the groups’ request to file a brief.

Age Verification

Requiring visitors to verify their ages before accessing adult content would impose “significant burdens” on the exercise of First Amendment rights online, the brief said.

The requirement would block some adult visitors from accessing protected content at all, and would rob visitors of anonymity and discourage those who were concerned about privacy and security from engaging with protected speech, it said.

The district court correctly found that the law was overly broad, lacked clear definitions of key terms, and failed to take account of less restrictive means to protect minors, such as parental use of content filters on their children’s devices, it said.

The law also would violate the free speech rights of website operators by requiring them to post disclosures concerning the alleged harms of pornography, the brief said.

That requirement would force them to voice Texas’ criticism of their own lawful expression “under pain of punishment,” it said.

“Decades of First Amendment precedent prevents Texas from doing so,” the brief said.

The Foundation for Individual Rights and Expression represents the free speech groups. The Office of the Texas Attorney General represents Texas.

The case is Free Speech Coalition Inc. v. Colmenero, 5th Cir., No. 23-50627, 9/27/23.