5th Circuit Is Gonna 5th Circus: Declares Age Verification Perfectly Fine Under The First Amendment

Free Speech

from the free-speech-is-weird-in-texas dept

Can the 5th Circuit ever do anything not crazy? You may recall that Texas, like so many states, passed a law, HB 1181, that required age verification for adult content sites. This law also required nonsense “health warnings” to be plastered on those sites, which did not come from any actual health experts. The Free Speech Coalition sued over the bill and won a quick injunction. The court deemed it to be obviously unconstitutional, siding with multiple other courts (including the Supreme Court) which have all found age verification requirements to access speech to be unconstitutional under the First Amendment.

Soon after that, though, the 5th Circuit removed the injunction blocking the law with no explanation at all (which seems to be how the 5th Circuit rolls…). This allowed Paxton to sue Pornhub’s parent company Aylo for allegedly violating the law.

Now, we finally have the full 5th Circuit ruling and it is incredibly problematic. It could have been worse because it could have allowed the mandated fake health warnings, but (thankfully) it kept those enjoined. However, it went against a ton of other courts in saying that age verification is, like, totally constitutional. The majority opinion claimed that they could use the much lower “rational basis” test to determine the constitutionality of age verification restrictions, rather than strict scrutiny.

The proper standard of review is rational-basis, not strict scrutiny. Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography. Therefore, the age-verification requirement does not violate the First Amendment. Further, Section 230 does not preempt H.B. 1181. So, the district court erred by enjoining the age-verification requirement.

The court leans heavily on the 1968 case Ginsberg v. New York. This case allowed for the restrictions on the sale of “obscene” material to children. The court insists that more recent cases don’t apply here, including Ashcroft v. ACLU and Brown v. Entertainment Merchants Association. In Ashcroft v. ACLU, the court rejected a bill to restrict access to content “harmful to minors.” In Brown v. Entertainment Merchants Association, the court rejected a bill limiting kids’ access to violent video games. The court insists that these cases don’t apply here, since the material is “obscene.”

The Ashcroft case seems almost directly on point. COPA included age verification regarding harmful content to minors and the Supreme Court rejected it. Yet the 5th Circuit now says that the reason was because the Supreme Court only applied “strict scrutiny” in the Ashcroft case, because it was only asked about strict scrutiny, and not which test should apply. If only it had applied rational basis review, according to the majority, it would have found COPA fine.

Ashcroft II supplies plaintiffs’ best ammunition against H.B. 1181. After all, despite Texas’s protestations, H.B. 1181 is very similar to COPA. Sure, COPA was criminal, and H.B. 1181 is civil. And COPA allowed age-verification as an affirmative defense, yet H.B. 1181 requires it upfront. But those changes do not affect our analyses here. 24 Ashcroft II, finding that COPA probably failed the narrow tailoring component of strict scrutiny, sent the case back down for trial. 542 U.S. at 673. One might read Ashcroft II for the proposition that COPA (and consequently H.B. 1181) fail strict scrutiny. We can even assume that here.

But that assumption does not end our analysis. Though Ashcroft II concluded that COPA would fail strict scrutiny, it contains startling omissions. Why no discussion of rational-basis review under Ginsberg? And why no analysis of intermediate scrutiny under Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)? We find those omissions particularly surprising considering that the Court in Reno felt the need to distinguish those at length. See Reno, 521 U.S. at 865–68.

We see only one answer and therefore only one way to read Ashcroft II consistently with Ginsberg: Ashcroft II did not rule on the appropriate tier of scrutiny for COPA. It merely ruled on the issue the parties presented: whether COPA would survive strict scrutiny….

… In other words, the petitioners did not challenge the applicable standard of review. Because that is not a jurisdictional argument, the Court did not have to correct them sua sponte.

And thus, because the 5th Circuit has decided rational basis is the proper standard, it can effectively ignore Ashcroft.

The 5th Circuit also has to bend over backwards to ignore the US v. Playboy case. The case involved another part of the Communications Decency Act, forcing adult TV channels to block access or scramble content during certain hours to protect kids from access, which was also found unconstitutional. But the 5th Circuit says that’s different because… scrambling video signals is not age verification.

H.B. 1181 is plainly more like the regulation in Ginsberg than like the regulation in Playboy. H.B. 1181 allows adults to access as much pornography as they want whenever they want. The law in Playboy did not. The burden in Playboy, although not a ban, is different in kind from whatever “burden” arises from the same type of age-verification required to enter a strip club, drink a beer, or buy cigarettes. The law in Ginsberg, like H.B. 1181, targeted distribution to minors; the law in Playboy targeted distribution to all. That is, once certain an individual is not a minor, H.B. 1181 does nothing further. The same cannot be said of the law in Playboy, which imposed substantial burdens even after an individual established his or her majority.

And thus, the court says it can ignore a whole series of Supreme Court rulings trying to block access to adult content and magically apply rational basis review, which, it says, “we do that easily.”

85-year-old Judge Patrick Higginbotham, who talks up the importance of the First Amendment, vigorously dissents on this part:

The years that followed vindicated Madison’s placement of the First Amendment with its rails for the paths of government, married to the individual’s right of identity and self-expression in their myriad forms. At its core, the right of free speech moves with and finds expression in changes of technology, with accompanying efforts by Congress and state legislatures to find accommodation. In this dynamic mix, Texas has the right—indeed, the obligation—to protect its children. And consistent with this task, it is a given that the State enjoys great latitude in identifying and addressing injury to persons and institutions. Yet implicit in this legal churn remains the core principle that state power must operate within the sinews of the First Amendment, ever a challenge to all of government, a challenge requiring government to attend to its defense, ever faithful to Madison’s gage of the reluctance of the States to relinquish their sovereign interests to the forming of the Union, a concern he further responded to with the assuring language that “Congress shall make no law.”

As Higginbotham rightly notes, contrary to the majority decision, the bill impacts not just “obscenity” (in which case Ginsberg could apply) but plenty of perfectly legal speech as well:

To these eyes, H.B. 1181 cannot be reasonably read to reach only obscene speech in the hands of minors. Although the statute incorporates Miller v. California’s definition of obscenity, H.B. 1181 limits access to materials that may be denied to minors but remain constitutionally protected speech for adults. It follows that the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.

The majority says (in passing, without much explanation) that all adult content should be automatically considered “obscene” when viewed by a minor. The dissent points out that you can’t just say that.

Although obscene speech lies outside the First Amendment’s umbrella of protection, not all sexual expression is obscene.14 Indeed, “sexual expression which is indecent but not obscene is protected by the First Amendment.”15 What Plaintiffs refer to as “exclusively ʻsoft core’ nude modeling,” for example, constitutes non-obscene sexual expression, as would many romance novels, or—to use another example from the briefing— Marlon Brando movies. And protected sexual expression encompasses materials that are appropriate for adults but inappropriate for minors. For example, scenes from the popular show “Game of Thrones,” the 1985 film “The Color Purple,” or the 2011 film “The Girl with the Dragon Tattoo” all contain “depictions” of sexual intercourse that may be “patently offensive” to young minors and regulated under H.B. 1181, but still offer artistic or cinematic value for adults.

While I agree with the majority that H.B. 1181’s plain text applies only to “sexual material harmful to minors,”16 the statute cannot be reasonably read to regulate only obscene content. In the words of the district court, H.B. 1181 goes “beyond obscene materials” and “regulates all content that is prurient, offensive, and without value to minors.”17 In doing so, the law infringes upon adults’ protected sexually expressive speech.

And thus, he says, strict scrutiny must apply (and everyone admits the bill cannot pass strict scrutiny).

Content-based restrictions on protected speech are presumptively unconstitutional, valid only if the government proves they are narrowly tailored to further a compelling interest. By the statute’s plain language, H.B. 1181 applies only to websites with content “more than one-third of which is sexual material harmful to minors.” Because H.B. 1181 regulates only a particular type of speech, “[t]he speech in question is defined by its content; and the statute which seeks to restrict it is content based.” As such, H.B. 1181 is subject to strict scrutiny.

As the dissent notes, the idea that Ginsberg makes it okay to apply rational basis review in this case flies in the face of what Ginsberg itself said and what the Supreme Court has said over the past 50 years.

The district court found the State “largely concede[d]” that strict scrutiny should apply, but looking to Ginsberg, the State now asks this Court to find that this content-based restriction does not warrant strict scrutiny. While the majority credits this argument, I cannot—for Ginsberg does not here call for rational basis review, and the Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech.

In Ginsberg, the Supreme Court upheld a New York criminal obscenity statute prohibiting the knowing sale of obscene materials to minors. Ginsberg was convicted of violating the statute after he sold two “girlie magazines” to a sixteen-year-old. Ginsberg asserted that the New York statute violated the First Amendment because “the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend upon whether the citizen is an adult or a minor.” He went on to argue “that the denial to minors under 17 of access to material condemned by [the statute], insofar as that material is not obscene for persons 17 years of age or older, constitutes an unconstitutional deprivation of protected liberty,” which Ginsberg likened to the deprivations of liberty recognized in Meyer v. State of Nebraska, Pierce v. Society of Sisters, and West Virginia State Board of Education v. Barnette.

The Supreme Court disagreed, focusing on the fact that the prosecution concerned a single sale in Ginsberg’s store to a minor. Despite observing that the magazines were “not obscene for adults,” the Court held the New York regulation did not invade the “minors’ constitutionally protected freedoms.” Explaining that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults,” the Court found the law rationally related to the State’s interest in protecting minors, and upheld Ginsberg’s conviction.

Ginsberg’s force here is its recognition of a state’s power to regulate minors in ways it could not regulate adults. But this overriding power to protect children does not answer our essential question: whether H.B. 1181 imposes a content-based restriction or causes an “unnecessarily broad suppression of speech addressed to adults.” If so, “the answer should be clear: The standard is strict scrutiny.”

Indeed, the dissent points out how there are no recent cases that suggest Ginsberg could possibly apply here.

It is no failure of advocacy that the State has cited to no case since Ginsberg in which the Supreme Court applied rational basis review to regulations impinging adults’ access to protected speech. No such case exists. Instead, since Ginsberg, the Supreme Court has consistently applied strict scrutiny to content-based regulations that infringe upon adults’ protected speech.

The dissent also points out how HB 1181 looks an awful lot like the section of the Communications Decency Act that was tossed out as unconstitutional in Reno v. ACLU.

H.B. 1181 is strikingly similar to the CDA and, in some ways, goes even further. Like the CDA, H.B. 1181 does not limit regulated speech to conduct proscribed by Texas law. Like the CDA, H.B. 1181 regulates more than just “sexual conduct.” The CDA prohibited speech regarding “excretory activities” as well as “organs” of both a sexual and excretory nature, and H.B. 1181 similarly restricts depictions of “pubic hair” and “the nipple of the female breast.” By its text, H.B. 1181 goes further than the CDA regarding the format of depictions it covers, as it applies to “descriptions of actual, simulated, or animated displays or depictions” of specified body parts, conduct, and undefined “exhibitions,” while the CDA applied, inter alia, to “image[s].” In essence, Texas’s contention that H.B. 1181 closely tracks Miller fails to persuade.

The majority opinion also rejected the idea that Section 230’s preemption section voids this law. Under Section 230, it says that no state law that seeks to hold service providers liable for third party speech is valid. And this law clearly does that. But the majority disagrees by creating the most convoluted explanation for how section (c)(1) of Section 230 works.

The whole point of (c)(1) is that you cannot hold a service provider liable as the publisher of third-party speech placed on their platform. But the 5th Circuit is reinterpreting that to say it only applies to defamatory content, and not “offensive material.” Yet that’s not what any other court has said.

The 5th Circuit even admits that in a previous case, Doe v. Myspace, the very same 5th Circuit already said that 230 broadly immunizes platforms against any laws that would hold them liable for 3rd party speech. Indeed, the majority opinion admits this “complicates the analysis.” But instead of following that precedent, this 5th Circuit panel says it’s different because… now (it claims) 230 only applies to harm from content directly, not harm from complying with the law.

The dissent again points out how fundamentally bonkers this reading is and is clearly at odds with the MySpace ruling where the court said directly that it protects against “all claims stemming from their publication of information created by third parties.”

The State’s first two arguments are foreclosed by Doe v. MySpace, wherein this Court noted that “Congress provided broad immunity under the CDA to Web-based service providers for all claims stemming from their publication of information created by third parties[.]” Although “[p]arties complaining that they were harmed by a Web site’s [sic] publication of user-generated content . . . may sue the third-party user who generated the content,” they may not sue “the interactive computer service that enabled them to publish the content online.”

The majority decision just ignores that.

Even more to the point, the dissent notes that in Doe, the court said that mandated age verification violates 230’s preemption clause.

But this Court held explicitly in Doe that requiring websites that only host third-party content to implement age-verification measures violates Section 230. The CDA immunizes platforms from all liability associated with hosting third-party content and it preempts all statutes inconsistent with this mandate. H.B. 1181 imposes severe civil liability, mandatory disclosures, and age verification requirements based on the presence of third-party content. That websites will be safe from H.B. 1181’s significant civil penalties if they implement the required age-verification system is no answer.

The majority gets one thing right: keeping the injunction on the mandatory health warnings, and rejecting the claims that the Zauderer case allows such mandatory disclosures. We’ve discussed the problems of how courts have been looking at Zauderer before, and at least here, the 5th Circuit seems to understand at least some of the limits of Zauderer.

As a reminder, Zauderer allows for mandatory disclosures over (1) commercial speech related to (2) advertising if and only if (3) the mandated speech is uncontroversial.

And thankfully, the panel recognizes that the mandatory warnings about “the harms” of porn are highly controversial and says Zauderer does not apply. It points out that both sides presented “credentialed and persuasive experts” that the mandated warnings are accurate, but also that they’re not. And given that:

We are not scientific journal editors, much less social scientists, behavioral experts, or neurologists. The courts generally are not the place to hash out scientific debate, particularly not on so contentious a topic as the impacts of engaging with pornography. Experts must do that in academic journals, studies, and presentations. Therefore, the record leaves us with no option but to declare that the health impacts of pornography are currently too contentious and controversial to receive Zauderer scrutiny.

And thus, the 5th Circuit actually gets this one bit right, but really messes up the age verification (and 230 parts). I would guess that the Free Speech Coalition is likely to ask the Supreme Court to hear an appeal, but who knows. It could be yet another highly consequential internet regulation bill that the Supreme Court needs to strike down…

Filed Under: 1st amendment, 5th circuit, adult content, age verification, free speech, ken paxton, obscenity, rational basis review, strict scrutiny, texas
Companies: free speech coalition