Pornhub Wins Free Speech Challenge To New Verification And Warning Laws

Authored by Jonathan Turley,

There is an interesting free speech ruling in Texas in favor of the adult entertainment site, Pornhub. Senior U.S. District Judge David A. Ezra of the U.S. District Court for the Western District of Texas ruled that a Texas law requiring age-verification and warning labels about the alleged dangers of porn contravenes the First Amendment.

Pornography sites have long been a target for politicians with a unique alliance of religious conservatives and feminists seeking to ban or limit access to material.

In American Booksellers Association, Inc., et al. v. Hudnut, 771 F. 2nd 323 (1985), the Seventh Circuit issued an important ruling striking down an Indianapolis ordinance that was the product of one such campaign by feminist scholars who argued that pornography leads to violence and denigration of women.

The ordinance declared such films as obscene due to “the graphic sexually explicit subordination of women, whether in pictures or in words.”

On the other side, there is obviously a sizable number of citizens.

Pornhub and Xvideos are ranked in the top ten most visited sites. However, the huge number of consumers for these sites are the least likely to publicly oppose efforts to curtail or bar their availability to the general public.

The lawsuit challenged the Texas law, which was set to go into effect Sept. 1, 2023, and would have required sites to use “reasonable age verification methods” to “verify that an individual attempting to access the material is 18 years of age or older.” In addition, pornography sites would have been forced to display a “Texas Health and Human Services Warning” in at least 14-point font. One of those warnings reads, “Pornography increases the demand for prostitution, child exploitation, and child pornography.” The warning must be accompanied by a national toll-free number for people with mental health disorders.

Judge Ezra ruled that “H.B. 1181 is unconstitutional on its face.” The court found that “the statute is not narrowly tailored and chills the speech of Plaintiffs and adults who wish to access sexual materials . . .  [it] is not narrowly tailored because it substantially regulates protected speech, is severely underinclusive, and uses overly restrictive enforcement methods.”

Notably, the court recognizes that “the state has a legitimate goal in protecting children from sexually explicit material online.” Moreover, the court accepts that there are “viable and constitutional means to achieve Texas’s goal, and nothing in this order prevents the state from pursuing those means.”

The decision is well analyzed and well supported. While the age verification presents a closer question, I am particularly concerned over the compelled speech element of the warnings. Notably, many conservatives supported the challenge in 303 Creative v. Elenis, where the state of Colorado required a website design to not only offer services to same-sex couples but to remove a statement on her website that was not consistent with the state’s views. Just as religious persons have free speech rights in refusing to adhere to certain policies, non-religious or secular persons (or companies) have free speech rights in pursuing their own counter values. Here businesses are being told to express views with which they disagree. Indeed, these statements have been contested for years.

The court also addresses the continued use of vague obscenity standards to curtail adult material. While pornography is not the preferred subject for free speech advocates, it is an area that has long raised free speech issues. Governments often target the least popular forms of speech. While these sites appear very popular, few want to be publicly seen as supporting sites widely seen as sinful or sexist.

I do view this law as containing unconstitutional elements. However, this is likely to be just the start to a long series of challenges and appeals. These laws have been enacted in other states, including Louisiana, Mississippi, Virginia and Utah.

Here is the opinion: Free Speech Coalition v. Colmenero