The Weird Legal Posture Of Bounty Laws Strikes Again: Porn Age Verification Lawsuit In Louisiana Dismissed
from the bounty-laws-suck dept
A federal district judge in Louisiana dismissed a lawsuit challenging the state’s mandatory age verification statute in order to access adult content on the internet. The lawsuit was brought by the Free Speech Coalition and stakeholders in and adjacent to the adult entertainment industry.
Plaintiffs intended to block the age verification statute passed by the state legislature last year and entered into force on January 1, 2023. Due to technical grounds, U.S. District Judge Susie Morgan sided with the defendants – state officials, including Attorney General Jeff Landry – in a motion to dismiss because of a lack of jurisdiction. The age verification law was structured as a so-called ‘bounty’ law, meaning that state officials are barred from enforcing it, but anyone else in the state can bring suit against a website for failing to implement the age verification. State courts are the responsible venues to hear private causes of action brought against adult platforms that don’t follow the age verification law. This means that the only “enforcement” comes in the format of a private civil enforcement action entitling the private party resolution in the format of damages, and not by a government official.
We’ve seen this before. A similar age verification law targeting adult content was implemented in Utah. The Free Speech Coalition and many of the same plaintiffs sued in a federal district court, but the case was dismissed on technical grounds, with that judge citing existing case law.
The U.S. Supreme Court ruled in Whole Woman’s Health v. Jackson (2021) that federal lawsuits against government officials that are meant to challenge laws that are designed to only be enforced by private individuals, or ‘bounty hunters,’ cannot advance. Mike Masnick wrote an insightful analysis on this in August.
Whole Woman’s Health v. Jackson challenged a controversial Texas law passed by legislators in 2021, Senate Bill 8 or the Texas Heartbeat Act, that questioned whether abortion activists were able to enjoin state officials with an injunction blocking enforcement of the law that essentially compels private parties to sue people who are suspected of “aiding and abetting” an abortion.
The conservative high court ceded to the states’ rights crowd and ruled that Texas state officials are protected by sovereign immunity. This is the standard the Free Speech Coalition and other plaintiffs failed to meet in both the Utah and Louisiana lawsuits, according to both judges. The coalition appealed the Utah ruling to the Tenth Circuit Court of Appeals in Denver. It appears they will do the same in response to this ruling in Louisiana. Mike Stabile, director of public affairs for the Free Speech Coalition, said that “while we disagree and will appeal, it’s not at all a ruling on the merits of the law, which are still clearly unconstitutional.”
But this is the fucked up part: if you know your federal judicial districts, the U.S. District Court for the Eastern District of Louisiana is covered by the Fifth Circuit Court of Appeals (the appeals court equivalent to the short bus).
The Fifth Circuit is currently hearing oral arguments in the Free Speech Coalition’s case brought against Texas for its age verification law that requires public health labeling. A panel of judges for the circuit issued an administrative stay on a preliminary injunction issued by a Texas federal district judge indicating that the law violates the First Amendment rights of adult users and the sites. The stay essentially allowed the age verification law to go into effect despite the litigation.
Hopefully, the Fifth Circuit doesn’t keep “Fifth Circuit-ing.” I will spare you the rant on why age verification laws in their current format are violations of the First and Fourteenth Amendments. I will leave you with this, though: Porn is a human right, and blocking it in this format is wrong.
*mic drop*
Michael McGrady covers the tech side of the online porn business. He is the contributing editor for AVN.com
Filed Under: 5th circuit, adult content, age verification, bounty laws, jurisdiction, louisiana, private right of action, sovereign immunity, standing
Companies: free speech coalition
Comments on “The Weird Legal Posture Of Bounty Laws Strikes Again: Porn Age Verification Lawsuit In Louisiana Dismissed”
'We can't club them over the head but if we give you the stick and legal immunity...'
Bounty laws are such a blatantly obvious run around those pesky ‘constitutional limits’ that it’s frankly embarrassing that judges keep upholding them and a condemnation of the legal system that keeps allowing it.
The state isn’t allowed to do X.
Private citizens don’t have the legal right to do X.
But the state outsourcing the ability to do X to private citizens using state power(the courts) and suddenly it’s perfectly fine.
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It’s not perfectly fine. It’s just that you can’t do a pre-enforcement lawsuit because the attorney general doesn’t enforce it so there’s nobody to preemptively sue. The law can still be found unconstitutional; you just have to wait for someone to actually sue so there are two parties to the case.
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If the state passed a law that allowed citizens to punch someone for saying speech the state officials don’t like you shouldn’t have to wait for the first punch to be thrown to sue to shut down the law, if for no other reason than the mere existence of such a law creates very real chilling effects on speech so long as it’s in play even without a punch thrown/lawsuit filed.
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OK, but who do you sue?
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Not a lawyer but ‘the people who handed out the stick in the first place’ and/or ‘those who’s authority allowed the stick to be used’ would be my first thought.
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“The people who handed out the stick in the first place” would be the state legislature. I don’t know that it’s even possible to sue a state legislature.
“Those whose authority allowed the stick to be used” would be nobody until that stick is used. Those whose authority could allow the stick to be used are judges. I don’t know that it’s even possible to sue a judge acting in their official capacity.
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Too bad that legislators who knowingly introduce and pass legislation that goes against the constitution should be treated like any other 5th columnist.
Texas still puts down dangerous offenders don’t they?
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What about preemptively suing the Judicial Branch of the state and the court clerks to prohibit them from allowing bounty cases to be filed and heard?
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There are many scenarios where civil lawsuits fail for constitutional reasons. For example, if I were to file a defamation lawsuit against a newspaper because they said something false about my running for President, but I don’t allege actual malice, that lawsuit would fail on First Amendment grounds. But the courts will at least let me file the lawsuit.
But here, you want a clerk to have to read through every complaint that’s filed, and toss it in the trash if they think the case is unconstitutional? No possibility of appeal, since it never even reaches a judge in the first place? Not even a record that it was filed? That’s not how we do things; that’s not how we should do things.
You can’t simply sue the judicial branch of state government. That would be indistinguishable from suing the state – and suing judges in their official capacity isn’t something we’ve ever allowed anyway. They don’t get qualified immunity; they get absolute immunity. Exceptions are only when they do some function outside their judicial role, like personally going to search someone’s house on a bad warrant instead of just issuing the bad warrant. You can’t even sue them for issuing a ruling that’s unconstitutional, let alone for merely hearing the case, let alone doing so preemptively.
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There’s an interesting case now at the Supreme Court that may end up touching on this issue.
Acheson Hotels, LLC v. Laufer hinges on questions of standing. Is there “standing” if the person was not directly harmed?
If the court rules broadly that there must be direct injury for standing, it may be a stake in the heart of these private right of action laws.
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Nope. Anything SCOTUS rules in that case only applies to standing in federal court. It won’t do a thing about standing in state courts.
These bounty laws are open to malicious campaigns, by getting hundreds of people to bring cases in a many courts as possible, but then perhaps that is the idea, destroy the targets with gnat bites.
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As the saying goes, ‘That’s a feature, not a bug’.
IANAL, but this sounds good...
The plaintiffs sued to prevent enforcement (IE asked for an injuction), by the AG and several others. … but the law is rigged so that those people aren’t the ones ‘enforcing’ the law.
Perhaps what they need to do is bring suit against the law itself, assigning the solicitor general of the state as “Next Friend” of the law, and ask for declarative judgement rather than an injunction.
You can sue money, and cars. Why not laws?
A facial challenge to the law (“the law is wrong no matter who enforces it, or in what circumstances”) should by rights be allowed.
And a “Next Friend” is assigned when the party to the suit is unable to participate themself (due to disability or etc.). In this case, the etcetera prevails.
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Under what authority do you simply assign a non-party to be the next friend? Who is doing that assigning? Certainly not the plaintiffs; you don’t get to pick your opponent’s lawyer.
The 11th Amendment is a thing. You may not like it, I may not like it, but it’s there. Suing “the law” is essentially suing the state, and you can almost never sue a state without its consent.
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Yes, but don’t forget that 11A says that a citizen of one State cannot sue another State where he doesn’t live. This is where the Free Speech Coalition gets blown out of the water. If they were incorporated and headquartered in Louisiana, for instance, they’d have a much better chance of success, but they’d still be shit out of luck in Arkansas, Texas, etc. All because neither 11A nor the Supremes have said that 11A means you can’t sue your own State – that’s still possible in some cases.
And as to ‘authority to assign’ a lawyer, that’s not what’s done. The OP used a non-legal term to mean “… and John Does 1 through 25”, whereupon the complaint describes them as agents of the State. That gets them to lawyer up to fight the claims. And we all know the old saw about a lawyer who represents himself has a fool for a client, right?
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The 11th, by its terms, only applies to citizens of another state, true. But as I understand it, federal courts generally won’t hear cases from individuals against their own state without the state’s consent, due to sovereign immunity. I could be wrong.
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Firstly, why do you degrade yourself and us readers by including such vulgarity in your blog post as, “But this is the fucked up part”? Disgusting.
Secondly, keep crying about children being protected from exposure to the vile and exploitative porn industry.
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counterpoint: eat shit and stop crying like a whiny little bitch about adults using adult words, motherfucker
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shut the fuck up jhon
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“Secondly, keep crying“
Oh that’s rich from someone with the nickname crybabby Jhon
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…hallucinated nobody mentally competent, ever.
Too bad there isn’t actually any consequences for knowingly passing laws against the constitution.
Oh right, that’s just ink on paper.
Totally worthless.
Question:
Since the Free Speech Coalition is “in the pockets” of the Adult content industry, could someone, say a Texan or a Louisianan, sue them for not having age verification on their website at all, thus getting them into court with standing, and then get the law(s) invalidated as Unconstitutional? Asking for sane people everywhere.
Michael McGrady, your article is dandy and all, but I don’t know how to parse “Bounty Laws Weird Posture Strikes Again” 😭
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My bad. I changed his original headline, so blame me. I’ve tried to clean it up again.
So, what I don’t get, is when are all these legal eagles going to get wise and start “reminding” the courts that a “private right of action” is just another term for deputizing one or more citizens.
Canvassing half-a-dozen State’s laws, I see that none of them allow for a deputization to last more than the necessary time to accomplish the purpose for which they were deputized. Always described in some fashion are the immediacy and duration of any such deputization. It appears to me that creating this ‘private right of action’ sets up a permanent deputization, albeit with a limited scope of only being allowed to accuse someone of some crime adjacent to abortion. That law is now in conflict with the prior law (in re deputization), and it’s going to take a judge to sort it all out.
Just for grins, here’s one article I found on this topic, and my take on it:
Under Texas law, Code of Criminal Procedure, Title 1, Chapter 2, only peace officers can temporarily deputize citizen to aid in the rectification of some allegedly illegal action, etc. The first question that should arise is, are the Legislators peace officers? For that matter, is the AG one? Between required professional training, certifications, insurance requirements, etc., one must assume that any citizen so deputized will automatically be suspect in their allegations, given the lack of the aforementioned requirements. And that’s before we even get to around to assigning blame when some freshly deputized citizen causes everything to go titsup.
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Are you trying to lose a winning case? The Texas courts won’t (and shouldn’t) interpret those laws that way. And federal courts, even including SCOTUS, would have to defer to the rulings of the Texas supreme court on matters of Texas law.
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I can only reply that repealing or expunging a bad law is best done ASAP. The longer you let it go on, the harder it is to get rid of it.
And as every court in the land has shown us all time and time again, there is no guaranteed winning strategy. There is only a risk of losing, which is always greater than zero.
11A does not exonerate either a State or its Legislators from the obeisance to 1A.
No one has an inherent Constitutional right to receive an abortion, that’s a given. However, one does have that level of right to receive information about abortions in general, and any other information that may be personally applicable. For the government, specifically the Legislative branch, to stifle that reception via a law that threatens a penalty for disseminating such information, that’s something that’s automatically repugnant to the Constitution, and thus null and void at the outset.
Taken on another tack, 1A also has something to say about peaceful assembly, and specifically prohibits any governmental desire to dissuade citizens from enjoying that right. Two or more people that gather together (IRL or online, makes no difference to 1A) to discuss abortions, and trade information about them, that’s not fodder for governmental interference, period.
tl;dr:
Judges, stop being distracted by all the red herrings being laid across your path, and start adjudicating as you were taught – the Constitution trumps all subservient laws.
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True. But it does rather limit what the federal courts can do about it. “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
True. But it does not trump the Constitution itself. You cannot bring a case in federal court unless you have an opposing party against which you have a case or controversy (and, due to the 11th, that opposing party cannot be the state itself.) That very Constitution requires this in its limitations of the federal judicial power.
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Not quite true. 11A does not say that a State can’t be sued, period, it in fact limits that immunity to non-citizens of any given State – that’s a big difference.
As previously noted, that’s the very reason the Free Speech Coalition is losing, not being an actual citizen of any one of the target States. The State can be a target of one of its own citizens, under certain circumstances.
Also as seen above, 11A is not considered a part of the Bill Of Rights, it sits below the first 10 Amendments in terms of what the government can or can’t do to the citizenry. In this case, we’re seeing a combination (and a bastard one at that) of 1A’s phrase “…have the right to seek redress” and 11A to abuse the citizenry in no small terms.
It will take the courts a long time to figure it all out, and to get it right in the end.