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Litigation of Survival

Free Speech wins (temporarily at least) in Texas

Over the past decade there have been increasing legislative efforts at the State and Federal levels to restrict access to just about any kind of access to people who work within “gig economies” and nearly all of them are particularly impactful to women, people who identify as LGBTQIA+, Sex Workers and particularly people of color. Almost all of these legislative meanderings have some sort of tie to bodily autonomy and free speech and our constitutional right to speak freely on the internet. A number of our allies within this fight have experienced hard fought wins and crushing losses. But they have experienced them in court and that is a significant win, as the rule of law is the only language legislators seem to understand. They certainly aren’t listening to Adult Industry professionals and who do you think is the most likely to fully understand the ramifications of chilling free speech?

But this past week, a major, albeit temporary, win took place in Texas by Free Speech Coalition regarding their anti porn law HB 1181, which required sites with adult content to force their visitors to provide digital IDs or other official proof of age, as well as display pseudoscientific “health” warnings. Free Speech Coalition and the co-plaintiffs argued that the requirements are unconstitutional and expose consumers to significant privacy risks.

The law, set to take effect September 1, would have given the Attorney General the power to fine a site with adult content more than $3M per year if it did not require visitors to present a digital ID or undergo background checks to establish age. Free Speech Coalition has argued that these new and expensive verification technologies present an unreasonable burden for both sites and users, stressing that members of the adult industry already register with parental filters and other software to help parents easily block adult content. The court agreed and the law will not be able to move forward without litigation.

“From the beginning, we have argued that the Texas law, and those like it, are both dangerous and unconstitutional. We’re pleased that the Court agreed with our view that HB1181’s true purpose is not to protect young people, but to prevent Texans from enjoying First Amendment protected expression. The state’s defense of the law was not based in science or technology, but ideology and politics.” - Alison Boden, Executive Director of Free Speech Coalition in XBiz News.

As with almost all of the legislative efforts surrounding sexually explicit content, U.S. District Judge David Ezra found that the law violates First Amendment free speech rights and is “too vague” and that the age verification component in House Bill 1181, signed by Gov. Greg Abbott in June, "is constitutionally problematic because it deters adults' access to legal sexually explicit material, far beyond the interest of protecting minors."

And here's why.

One of the two methods allowed for age verification under the law is through government-issued ID; given the government is not required to delete data regarding access. People will be particularly concerned about accessing controversial speech when the state government can log and track that access."

"In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech," - Judge David Ezra

Having to identify oneself in order to access a gay porn site, for example, could be particularly troubling in a state that still hasn't repealed a law banning sodomy!

"Given Texas's ongoing criminalization of homosexual intercourse, it is apparent that people who wish to view homosexual material will be profoundly chilled from doing so if they must first affirmatively identify themselves to the state.” - Judge David Ezra

In addition to age verification, the law also requires porn sites to post warnings about the alleged psychological dangers of viewing porn, as well as the number to a helpline for people with mental health and substance abuse issues and although the warnings carry the label "Texas Health and Human Services," it's not apparent that the Texas Health and Human Services Commission has announced any such findings.

Judge David Ezra further stated that the "state provides virtually no evidence that this is an effective method to combat children's access to sexual material" and that the warnings include language that most minors would not understand.

Additionally, although the state defends H.B. 1181 as “protecting minors”, it is not tailored to this purpose. It nominally - and what can only be described as per formatively - attempts to prevent minors' access to pornography, but contains substantial exemptions, including material most likely to serve as a gateway to pornography use. In particular, social media sites, would be exempt from the age restrictions because they likely do not meet the one-third sexual material standard and that leaves minors able to view porn on Reddit communities, Tumblr blogs and Instagram pages, for example, that are dedicated to explicit sexual content, and running image searches on search engines also wouldn't be restricted under the law.

“While Texas presented the most straightforward path to securing a ruling like this, the issues are the same whether in Utah, Louisiana or Virginia. Anyone who attempts to bring a case in those jurisdictions faces little hope of success.” - Alison Boden, Executive Director of Free Speech Coalition.

All of these litigation efforts to uphold the constitutional rights of people who are most marginalized and discriminated against are incredibly important and our gratitude to organizations and individuals who file these lawsuits is regularly expressed. But they aren’t just litigating for our rights…they are litigating for our ability to survive. And survival is complicated and nearly impossible under the criminalization of our bodies, the internet and our ability to express ourselves. Direct service organizations that provide desperately needed crisis support to individuals are unable to access these revenue streams and our ability to maintain the level of assistance as well as data to support the need for these critical, but costly legal maneuvers.

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