Some of you may remember back in the ’90s when Las Vegas tried to rebrand itself as a family-friendly destination. That move saw the addition of more theme-park, activity-oriented ventures and a slight de-emphasis on the things that earned Vegas the nickname “Sin City.” We decided to We noticed as we walked around the city that the sin cannot be removed. The men who were distributing the cards, which featured women in scantily clad outfits and advertised escort services were extremely considerate. When we approached, they would step back and put their cards behind them.
PornHub’s “people” celebrated the weekend. I don’t say that in a bad way. U.S. District Court Judge David A. Ezra of the U.S. District Court for the Western District of Texas ruled that Texas H.B.1181 violates the First Amendment. In her official capacity as Interim Attorney General for the State of Texas,” Ezra stated that the law, which requires age verification systems for adult sites along with what amounts to a health warning, was not “narrowly tailored” enough to achieve its goals.
Ezra wrote:
H.B. 1181 is the least restrictive and most narrowly tailored way to advance that interest. The law is narrowly tailored and is the least restrictive method to achieve this goal.
Although the state defends H.B. 1181 as protecting minors, it is not tailored to this purpose. Rather, the law is severely underinclusive. When a statute is dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint discrimination under false auspices, or at a minimum simply does not serve its purported purpose.
As stated earlier, the state has a compelling interest in preventing minors from accessing pornography. However, these disclosures do not target minors. Age verification will prevent minors from accessing pornographic content.
The state has yet to meet the disclosures that are narrowly tailored in general. They require large fonts, multiple warnings, and phone numbers for mental health helplines. However, the state provides virtually no evidence that this is an effective method to combat children’s access to sexual material. The messages themselves do not mention health effects on minors. The language requires a relatively high reading level, such as “potentially biologically addictive,” “desensitizes brain development,” and “increases conditioned responses.” H.B. 1181 § 129B.004. Quite plainly, these are not disclosures that most minors would understand. Moreover, the disclosures are restrictive, impinging on the website’s First Amendment expression by forcing them to speak government messages that have not been shown to reduce or deter minors’ access to pornography. Under strict scrutiny, the disclosures did not survive.
PornHub and the Free Speech Coalition are celebrating. They do not believe that the First Amendment is vindicated. PornHub continues to exploit women, men, and children as consumers, participants or willingly.
It is ironic that while PornHub’s owners are recovering from their champagne hangovers and Texas legislators are drafting something that can survive a legal challenge. Someone who publishes an opinion that is not approved about medical conditions, treatments or gender expressions, environmental issues, or elementary school curricula risks the wrath of the Ban Hammer from Hell.
