Here’s another one I missed. My God what a wretched session this was.
A consortium of adult entertainment advocacy groups, including the online giant Pornhub, is suing the state of Texas ahead of its pending enforcement of a new law requiring adult sites to verify the ages of users and display a health warning to those accessing their content.
In legal papers filed in the Western District of Texas federal court on August 4, Pornhub, Free Speech Coalition and others argue that Texas’ HB 1181 violates their users’ constitutional rights by imposing flimsy, overly broad and easily circumvented security requirements on sites in the name of “allegedly protecting minors.” Signed into law by Texas Governor Greg Abbott this past June, HB 1181 goes into effect on September 1 and requires users to verify their age using “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.”
The law also requires sites to display a lengthy health warning that describes pornography as “potentially biologically addictive” and “proven to harm human brain development”—both of which are claims the lawsuit calls “controversial” and “factually false.”
“[HB 1181] joins a long tradition of unconstitutional—and ultimately failed—governmental attempts to regulate and censor free speech on the internet,” the complaint states.
The plaintiffs describe Texas’ age verification requirement as “the least effective and yet also the most restrictive means of accomplishing Texas’ stated purpose of allegedly protecting minors.” Court documents also note that individuals under 18 can use virtual private networks (VPNs) and proxy servers such as the “Tor” browser as easy workarounds to digital age verification. The complaint goes on to call Texas’ law “incurably vague,” and says such measures are likely to have a chilling effect on adult users afraid of having their personal information stolen or made public. It ends by asking the court to declare the contents of the law unconstitutional and prohibit Texas’ attorney general from enforcing it.
KXAN adds some details.
The law does not apply to social media websites or search engines.
The websites will be required to ask their users to transmit one of the following:
- digital identification;
- government-issued identification; or,
- public or private transactional data (mortgage, pay stub, etc.).
“Despite impinging on the rights of adults to access protected speech, [the law] fails strict scrutiny by employing the least effective and yet also the most restrictive means of accomplishing Texas’s stated purpose of allegedly protecting minors,” the lawsuit states.
The FSC’s attorneys also list out several means by which a minor could bypass the requirement. They also claim that content filtering on devices by parents and guardians of minors is more effective solution.
“But such far more effective and far less restrictive means don’t really matter to Texas, whose true aim is not to protect minors but to squelch constitutionally protected free speech that the State disfavors,” the lawsuit states.
The law also requires adult websites to display three warning notices to users that FSC claims to be “lengthy, controversial, and factually false.”
All of the notices start with “TEXAS HEALTH AND HUMAN SERVICES WARNING.” However, the lawsuit claims that the Texas Department of Health and Human Services never approved such notices.
Those warnings claim the following:
- “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 Act’s “health warning” requirement is a classic example of the State mandating an orthodox viewpoint on a controversial issue,” the lawsuit states. “Texas could easily spread its ideological, anti-pornography message through public service announcements and the like without foisting its viewpoint upon others through mandated statements that are a mix of falsehoods, discredited pseudo-science, and baseless accusations.”
In addition to the notices, the law also requires adult websites to display the phone number for the U.S. Substance Abuse and Mental Health Services Administration, 1-800-662-HELP (4357).
So, two things. I fully agree with the plaintiffs that the messages that adult websites would be forced to display are at best misleading and more likely just moral panic propaganda. On free speech grounds, that should be blocked by the courts. The problem is that states have passed laws requiring doctors and clinics to provide at best misleading and often outright false medical information about abortion to patients who are seeking abortions, and the courts have generally allowed this. As such, I can’t say I’m optimistic for a good outcome here. Being right isn’t always the right answer.
The other thing is that this sounds like a data privacy debacle in the making. What do you think is going to happen when a bunch of websites are suddenly in the business of processing and maintaining passport and drivers license images and data? It’s true that these websites already handle credit card transactions, but that’s much more mature technology, and there’s plenty of banking and financial regulations in place to assist people who get that information stolen. Plus, you know, you can replace a credit card a lot more easily than a drivers license or passport, and a credit card isn’t intrinsic to your identity. This is a bad idea on multiple levels, and yet I fear it will be allowed to go forward. Time to invest in a VPN, y’all. Vice, TPR, and the Current have more.