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Texas Interim Attorney General Argues All Adult Content is ‘Obscene,’ Not Protected by 1st Amendment

AUSTIN — Texas’ Interim Attorney General Angela Colmenero issued Tuesday a response to the Free Speech Coalition (FSC) lawsuit against the state’s controversial age verification law.

As XBIZ reported, the Republican-authored HB 1181 was passed by the Texas legislature with bipartisan support in May and will go into effect September 1.

The new Texas age verification law — part of a state-by-state campaign by religious conservatives and anti-porn activists to outlaw all sexual material online — compels adult websites to post pseudoscientific anti-porn propaganda disclaimers declaring that “pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses and weakens brain function.”

Earlier this month, FSC filed a legal challenge in Texas over HB 1181, and were joined as co-plaintiffs by an array of adult platforms and workers.

In her reply to the lawsuit, Colmenero argued that HB 1181 does not violate the plaintiffs’s constitutional rights “because the material is obscene, and some of the plaintiffs are foreign companies,” the Austin NBC News station reported.

Colmenero’s line of argument is consistent with the strategy of the anti-porn crusaders behind the bill, many of whom have publicly acknowledged that the real purpose of these state-by-state “age verification” bills is to reinstate obscenity prosecutions of all adult content at the federal level.

“Porn is absolutely terrible for our kids,” Colmenero wrote. “They are ‘particularly susceptible’ to porn because their brains are underdeveloped. Our kids may be more likely to emulate what they see in porn, even if it involves violence or coercion.”

Colmenero argued that the law is constitutional because it is a First Amendment case and she considers all affected adult content as “obscene” and thus not First Amendment-protected.

The Revolving Door of the Texas AG Office 

Colmenero is the second interim AG appointed by Republican Gov. Greg Abbott to serve in place of Texas AG Ken Paxton, who suspended in May due to his being impeached with bipartisan approval by the Republican-controlled state House. Until her appointment last month, Colmenero served previously as Abbott’s deputy chief of staff. The former interim AG, Abbott’s erstwhile Secretary of State John Scott, left the position after seven weeks when he came under scrutiny for his role in a controversial lawsuit.

Attorneys for the FSC and the other plaintiffs immediately filed a reply to Colmenero, arguing her response “concedes dispositive points, such as the absence of any satisfactory justification for discouraging consumption of adult content by adults, which the State neither denies is a statutory purpose nor defends.”

To justify the preliminary injunction, the plaintiffs argued, “it suffices to note that the State’s defense pitched in part as a bid to change Supreme Court precedent,” which “is not likely to succeed when measured against the law as it exists today and the current record. The likely result here is the same one that the Supreme Court and lower courts have repeatedly and consistently reached when invalidating laws, such as the Act, that limit adults’ access to adult content under the guise of protecting minors, without accounting for less restrictive alternatives.”

On Tuesday, XBIZ reported that the Texas Department of Health and Human Services has declined to confirm or deny whether the “health warnings” mandated by HB 1181 are supported by any official documentation or statement produced by that office.

A hearing on FSC’s motion for a preliminary injunction is scheduled for Wednesday.

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