With Age Verification Law Under Challenge, Texas Barges Ahead Anyway

Ever since the U.S. Court of Appeals for the Fifth Circuit first issued an administrative stay of the preliminary injunction issued by the district court hearing the case, it has been possible Texas would seek to enforce the law, even with the Free Speech Coalition’s lawsuit still in progress.

As FSC noted when the Fifth Circuit later converted its administrative stay to a “merits” stay, nothing had changed: “Texas is still free to begin filing suit against sites without adequate age-verification – which they have so far refrained from doing while the case is pending.”

“It is important to remember that all of the current litigation revolves around the injunction itself — whether or not Texas can begin enforcing the law while courts evaluate the larger constitutional issues,” FSC observed at the time. “Should any platform be contacted by the state of Texas, Louisiana, Utah or any other state that has an age-verification law, it’s imperative that they contact FSC immediately.”

On the other hand, many legal observers might tell you there was nothing particularly unusual or controversial about the preliminary injunction issued by U.S. District Court Judge David Ezra last summer.

The court’s reasoning, about which you can read in more detail here, didn’t set off alarms within the legal community about judicial overstep, or lead to a chorus of First Amendment attorneys and scholars predicting the injunction would be stayed by the Fifth Circuit. Ezra’s decision was mainstream; the decision to stay it, something the Fifth Circuit still hasn’t adequately explained, appears to be the outlier.

A more cautious state attorney general might take a wait and see stance, given that the trial court judge has already opined the law is on shaky footing, constitutionally. But for Paxton and others in Texas politics who are similarly inclined, the benefits of filing the lawsuit are clear, even if the case turns out to be a loser that merely hastens the demise of the state law at issue.

Those benefits include getting to issue a statement like this: “Texas has a right to protect its children from the detrimental effects of pornographic content. I look forward to holding any company accountable that violates our age verification laws intended to prevent minors from being exposed to harmful, obscene material on the internet.”

Of course, should the state prevail in the lawsuit filed against Aylo, Texas also would be in for something of a payday – albeit a drop in the proverbial 50-gallon oil drum within the grand scheme of the state’s annual budget of over $140 billion.

Paxton’s petition asks the court to “impose civil penalties of up to $10,000 a day” dating back to September 19, 2023, asserting Aylo has been in violation of the state’s law “for at least 160 days and must pay a civil penalty of up to $1,600,000 plus up to $10,000 a day for each day after the date of filing.”

I’ve reached out to several attorneys to ask what happens to the lawsuit Texas just filed against Aylo in a variety of hypothetical circumstances, including a reinstatement of the preliminary injunction in the FSC case and the FSC winning on the merits of that case, something which seems as likely as not to happen, based on Judge Ezra’s disposition towards aspects of the statute that force “adult video companies into compelled speech.”

These are complicated questions, of course, so add to the list of unsurprising things the fact I haven’t received responses to my queries yet – other than from a few attorneys who have been unable to comment, due to being involved in handling either the FSC case or the newly filed lawsuit against Aylo.

The reason I think Texas may be facing an uphill battle in the FSC case, once it returns to district court for hearings on the merits, lies in Judge Ezra’s reading of the statute – and his skepticism some of its provisions can survive court scrutiny under the relevant case law.

As Ezra put it in his order granting the preliminary injunction last summer, with the “warning label” provisions of the Texas law “the government is forcing commercial sites to speak and broadcast a proposition that they disagree with.”

“The Supreme Court has ‘held time and again that freedom of speech includes both the right to speak freely and the right to refrain from speaking at all,’” Ezra added. “Even if, as the defendant argues, the law compels only commercial speech, it does not pass constitutional muster.”

I don’t know what part of that the Fifth Circuit disagrees with, or how they avoid terming what the HB 1181 warning label provisions require to be “compelled speech.” I think there’s a good chance a majority of the U.S. Supreme Court would agree with Ezra, should the litigation proceed that far, someday well down the road.

In the meantime, at least Paxton got to issue his press release – and he’s sure to issue more as the lawsuit progresses (it if progresses), whenever it suits him. And maybe that’s the whole point.

Image of Austin, Texas by Pixabay from Pexels