I think we could witness one of the most important First Amendment legal showdowns ever.

The U.S. Supreme Court is being asked to rule on the constitutionality of mandatory age verification for porn websites. If the high court takes up the case, it would queue up a landmark debate pertaining to the First Amendment and privacy rights of millions of people.

Free Speech Coalition and the parent companies of the largest adult entertainment websites on the web filed suit in the U.S. District Court for the Western District of Texas with the intention to block House Bill (HB) 1181.

HB 1181 requires mandatory age verification for porn websites with users from Texas IP addresses. It also requires pseudoscientific health warnings to be posted on adult websites. Counsel representing the coalition and the porn companies argued that it violated the First Amendment rights of consumers and owners of the websites. This prompted the federal district court to initially enjoin the state of Texas from enforcing the law because its text appeared to be unconstitutional.

Acting Texas Attorney General Angela Colmenero appealed the injunction to the Fifth Circuit Court of Appeals. After a clear demonstration of classic Fifth Circuit tap dancing and the return of Ken Paxton to helm of the Attorney General’s office, Texas was granted permission to enforce the age verification requirements outlined in the law. Luckily, the circuit judges properly applied the Zauderer standard, denying the requirement to post the bogus health warnings.

Soon after this, Paxton announced lawsuits against the parent companies of Pornhub, xHamster, and Stripchat for violations of HB 1181. The penalties total in millions of dollars in damages, per the law. After the lawsuits for HB 1181 violations were announced and filed in circuit courts in Travis County, counsel for the plaintiffs tried to hold enforcement while they petitioned the high court to take up the case for consideration. Justice Samuel Alito, the circuit justice for the Fifth Circuit, has yet to indicate that the case will be taken up by the Supreme Court. There is no reason why they shouldn’t take it up because of how important this case is moving forward, and how this issue is showing up in so many other states.

The case, Free Speech Coalition et al. v. Paxton, is so important that the national affiliate of the American Civil Liberties Union announced they are aiding the plaintiffs and their current counsel, a team from the big law firm Quinn Emanuel, in their case. They will support the petition for writ of certiorari, potential oral arguments, etc. to render House Bill 1181 and all age verification laws as unconstitutional pipedreams.

Plaintiffs accurately argue that this is settled law, referring to the high court’s landmark decision in Reno v. American Civil Liberties Union. This decision found that segregating the content of the internet by age violates the rights of not only adults but for minors. The vast majority of age verification laws as they are structured now do just that.

While the Supreme Court provided for a less restrictive means to filter out minors from viewing age-restricted materials and potentially facing some level of harm, the vehicles of enforcement and some of the options touted in these bills for controlling minors’ web usage are, to the plaintiffs and civil liberties organizations, a violation of the First Amendment. ACLU and Quinn Emanuel attorneys for the plaintiffs present these arguments in their petition for writ of certiorari, which was filed in April 2024. Now, we just need the Supreme Court to take this seriously and not let the Fifth Circuit, the circuit that upheld a ban on drag shows, dictate law for the nation.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

I think we could witness one of the most important First Amendment legal showdowns ever.

The U.S. Supreme Court is being asked to rule on the constitutionality of mandatory age verification for porn websites. If the high court takes up the case, it would queue up a landmark debate pertaining to the First Amendment and privacy rights of millions of people.

Free Speech Coalition and the parent companies of the largest adult entertainment websites on the web filed suit in the U.S. District Court for the Western District of Texas with the intention to block House Bill (HB) 1181.

HB 1181 requires mandatory age verification for porn websites with users from Texas IP addresses. It also requires pseudoscientific health warnings to be posted on adult websites. Counsel representing the coalition and the porn companies argued that it violated the First Amendment rights of consumers and owners of the websites. This prompted the federal district court to initially enjoin the state of Texas from enforcing the law because its text appeared to be unconstitutional.

Acting Texas Attorney General Angela Colmenero appealed the injunction to the Fifth Circuit Court of Appeals. After a clear demonstration of classic Fifth Circuit tap dancing and the return of Ken Paxton to helm of the Attorney General’s office, Texas was granted permission to enforce the age verification requirements outlined in the law. Luckily, the circuit judges properly applied the Zauderer standard, denying the requirement to post the bogus health warnings.

Soon after this, Paxton announced lawsuits against the parent companies of Pornhub, xHamster, and Stripchat for violations of HB 1181. The penalties total in millions of dollars in damages, per the law. After the lawsuits for HB 1181 violations were announced and filed in circuit courts in Travis County, counsel for the plaintiffs tried to hold enforcement while they petitioned the high court to take up the case for consideration. Justice Samuel Alito, the circuit justice for the Fifth Circuit, has yet to indicate that the case will be taken up by the Supreme Court. There is no reason why they shouldn’t take it up because of how important this case is moving forward, and how this issue is showing up in so many other states.

The case, Free Speech Coalition et al. v. Paxton, is so important that the national affiliate of the American Civil Liberties Union announced they are aiding the plaintiffs and their current counsel, a team from the big law firm Quinn Emanuel, in their case. They will support the petition for writ of certiorari, potential oral arguments, etc. to render House Bill 1181 and all age verification laws as unconstitutional pipedreams.

Plaintiffs accurately argue that this is settled law, referring to the high court’s landmark decision in Reno v. American Civil Liberties Union. This decision found that segregating the content of the internet by age violates the rights of not only adults but for minors. The vast majority of age verification laws as they are structured now do just that.

While the Supreme Court provided for a less restrictive means to filter out minors from viewing age-restricted materials and potentially facing some level of harm, the vehicles of enforcement and some of the options touted in these bills for controlling minors’ web usage are, to the plaintiffs and civil liberties organizations, a violation of the First Amendment. ACLU and Quinn Emanuel attorneys for the plaintiffs present these arguments in their petition for writ of certiorari, which was filed in April 2024. Now, we just need the Supreme Court to take this seriously and not let the Fifth Circuit, the circuit that upheld a ban on drag shows, dictate law for the nation.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Last fall, we wrote about Yelp going to court in California to try to block Texas’s indicted and facing trial shortly Attorney General Ken Paxton from suing the company for using its speech to accurately warn users that “Crisis Pregnancy Centers” do not generally offer any actual medical care.

As you may know, anti-abortion advocates have opened up so-called “crisis pregnancy centers,” which are designed to look like medical facilities to help pregnant mothers consider their options. Many people are pointed to these crisis centers instead, when searching for potential abortion providers. The centers pretend to be a neutral advocate to help them consider their options, while in reality they are designed to steer expectant mothers away from abortion.

Yelp, quite reasonably, decided to use its own First Amendment rights to provide some more info about those crisis pregnancy centers to better inform potential visitors. It posted notices on crisis pregnancy centers saying: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite.”

Ken Paxton, who cosplays as a “free speech” supporter on the internet, wrote a letter to Yelp threatening to sue them for this speech. In response, Yelp changed the message to be even more accurate, but Paxton was still upset with their speech, which now said “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.” This is accurate speech, which even Paxton admits is accurate. He just doesn’t like it.

After Texas threatened to sue Yelp once again, Yelp went to court first in a California federal court to get Paxton to shut up and to stop interfering with the company’s free speech rights. Paxton responded by suing Yelp in a Texas state court. Unfortunately, the court in California “reluctantly” rejected the lawsuit due to “Younger abstention,” which basically says a federal court doesn’t have jurisdiction over a case while a state court is considering the same matter. Yelp has appealed to the 9th Circuit.

In the meantime, though, last week, the Texas state court tossed out Paxton’s lawsuit. There’s not much to go on in the order, as it basically just says “we agree with Yelp’s special appearance” in this case.

Having considered Defendant Yelp Inc.’s (“Yelp”) Verified Special Appearance (“Special Appearance”), the responses, and the replies, if any, the Court finds that the Special Appearance should be GRANTED.

You can look at the “Special Appearance” by Yelp which lays out the main reasons the case should be dismissed, with the big one being the court’s lack of personal jurisdiction over Yelp:

This case involves a misguided lawsuit by the State of Texas (“State”) against Yelp, a California-based website operator with no offices in Texas, for allegedly violating the Texas Deceptive Trade Practices Act (“DTPA”) by posting a truthful consumer notice about crisis pregnancy centers on its nationwide website. In the Petition, the State does not allege that Yelp is “at home” in Texas, that the consumer notice was purposely directed at Texas, or that the DTPA claim arises from or relates to Yelp’s contacts with Texas. Instead, the State admits that Yelp is located in San Francisco, California, alleges that Yelp “targeted pregnancy resources centers nationwide,” and concedes that the DTPA claim arises out of a notice posted, from California, on the Yelp business pages of “every pregnancy resource center across the nation,” not merely those in Texas.

Yelp files this Special Appearance because the Petition should be dismissed for lack of personal jurisdiction for many reasons. Yelp, a nonresident of Texas, lacks sufficient minimum contacts with Texas to demonstrate purposeful availment, the DTPA claim does not arise from or relate to Yelp’s contacts with Texas, and the exercise of jurisdiction over Yelp would offend traditional notions of fair play and substantial justice. Yelp should not be haled across the country into a foreign jurisdiction to respond to a baseless claim premised on conduct that occurred exclusively in California.

So, it sure sounds like the Texas court tossed the case out on jurisdictional grounds, without even needing to get to the ridiculousness of Texas trying to sue a company over its accurate speech. The case in front of the 9th Circuit remains in play, though I’m not sure how this latest situation will play into that. If the Texas case is now dead (though, I guess Texas could appeal), then the Younger abstention issue should be moot?

Either way, it’s yet another example (one of so many) of Texas showing off its unconstitutional, censorial tendencies — in a state with leadership who claims to be supportive of free speech.