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5th Circuit Upholds Texas Age Verification Law, Strikes Down ‘Health Warnings’

AUSTIN — A Fifth Circuit panel on Thursday ruled on Texas’ controversial age verification law, overturning a lower court’s injunction against enforcement, but striking down the provision that mandated that adult websites post a “health warning” perpetuating religious anti-porn propaganda myths.

The opinion was penned by Judge Jerry E. Smith, who stated that the law “doesn’t violate the First Amendment because it serves the government’s ‘legitimate interest’ of keeping children from viewing porn,” Bloomberg Law reported.

In a partial dissent, Judge Patrick E. Higginbotham argued that the law “would also restrict speech that is constitutionally protected for adults — like romance novels, scenes from the popular TV show ‘Game of Thrones,’ and Marlon Brando movies,” Bloomberg Law reported.

“Such action ‘is to burn the house to roast the pig,’” Higginbotham wrote.

Judge Jerry E. Smith wrote in a Thursday opinion.

The Texas law (HB 1181) requires companies distributing “harmful” and “obscene” material on the internet to verify each user’s age and carries a fine of $10,000 per violation. Attorney General Ken Paxton began enforcing the law in February, bringing a $1.6 million lawsuit against the company that owns the adult content site, PornHub.

In overturning the preliminary injunction, the Fifth Circuit signaled that the case brought by the Free Speech Coalition, which represents the adult entertainment industry, isn’t likely to succeed on the merits.

Judge Patrick E. Higginbotham argued in a partial dissent that the law would also restrict speech that is constitutionally protected for adults—like romance novels, scenes from the popular TV show “Game of Thrones,” and Marlon Brando movies. “Such action ‘is to burn the house to roast the pig,’” Higginbotham wrote.

FSC released a statement citing Higginbotham’s dissent.

“We disagree strenuously with the analysis of the Court majority,” FSC wrote. “As the dissenting opinion by Judge Higginbotham makes clear, this ruling violates decades of precedent from the Supreme Court: ‘[T]he Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech.’ In the case of HB 1181, ‘the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction — whether that speech is harmful to minors.’”

The Fifth Circuit “kept the district court’s injunction over the health disclaimers intact, saying the required messages unconstitutionally forced speech,” Bloomberg Law reported.

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