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5th Circuit Denies Texas AV Law Stay Pending SCOTUS Appeal

AUSTIN, Texas — The United States Court of Appeals for the 5th Circuit has rejected a petition, by Free Speech Coalition (FSC) and its co-plaintiffs in the challenge to Texas’ controversial age verification law, to stay the court’s recent decision upholding the law while they appeal to the U.S. Supreme Court to review its constitutionality.

As XBIZ reported, the plaintiffs had signaled to the appeals court their intention to take their challenge to Texas’ HB 1181 to the Supreme Court, arguing that their forthcoming petition for certiorari has “good prospects of being granted” in a short period of time.

FSC released the following statement regarding the 5th Circuit’s ruling:

Earlier this week, FSC and our co-plaintiffs filed a motion in the Fifth Circuit Court of Appeals requesting that the court stay the mandate — in other words, prevent Texas from enforcing the law — while we file for a writ of certiorari to secure review of the decision before the Supreme Court. The motion was denied this morning, meaning Texas can continue to enforce its law for the time being.

While today’s ruling wasn’t entirely surprising, we were again encouraged by Judge Higginbotham’s dissent, in which he argues that the stay should have been granted as the law “conflicts with Supreme Court precedent” and is “likely unconstitutional.”

“The substantial question of law here presented begs for resolution by the high court. The decision conflicts with Supreme Court precedent and decisions of our sister circuits. And I would stay the mandate because Appellees face a risk of enforcement proceedings under the likely unconstitutional statute.”

Despite the rulings of the 5th Circuit, we believe in our case, and will continue to fight for the rights of our members, our industry, our workers and the right of adult Texans to access legal and constitutionally protected speech without the interference of the government.

HB 1181 was passed by the Texas legislature in May 2023 and is a much-augmented version of Louisiana’s age verification law and its many copycat versions in other states. At the time, the FSC condemned the law as “blatantly unconstitutional” and a “violation of the First Amendment rights of creators, consumers and platforms.”

In August 2023, FSC filed a legal challenge in Texas over HB 1181, which is still ongoing, even after the 5th Circuit ruling. Joining the FSC as co-plaintiffs were an array of adult platforms and workers, including MG Premium LTD; MG Freesites LTD (now Aylo companies); Webgroup Czech Republic, A.S.; NKL Associates, S.R.O.; Sonesta Technologies, S.R.O.; Sonesta Media, S.R.O.; Yellow Production S.R.O.; Paper Street Media, LLC; Neptune Media, LLC; Mediame SRL; Midus Holdings, Inc.; and Jane Doe, an adult content creator.

Texas’ Attorney General Ken Paxton has already filed lawsuits against Aylo, xHamster and Chaturbate for failure to comply with the law, an enforcement move that legal experts say is unusual for a highly controversial law that is still making its way through the appeals process and could end up before SCOTUS.

Main Image: Texas’ AG Ken Paxton

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