Some excerpts from today's long decision in Free Speech Coalition, Inc. v. Colmenero by Judge David Alan Ezra (W.D. Tex.):
This case concerns a law passed by the State of Texas that restricts access to pornographic websites by requiring digital age verification methods … about the alleged harms caused by pornography….
H.B. 1181 is set to take effect on September 1, 2023. H.B. 1181 contains two requirements, both of which are challenged in this litigation. First, the law requires websites to use "reasonable age verification methods … to verify that an individual attempting to access the material is 18 years of age or older." Second, the law requires adult content websites to post a warning about the purported harmful effects of pornography and a national helpline for people with mental health disorders.
The law defines "sexual material harmful to minors" as including any material that "(A) the average person applying contemporary community standards would find, taking the material as a whole is and designed to appeal or pander to the prurient interest" to minors, (B) is patently offensive to minors, and (C) "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
The law regulates a "commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors." H.B. 1181 requires these companies to "comply with a commercial age verification system that verifies age using: (A) government-issued identification; or (B) a commercially reasonable method that relies on public or private transactional data to verify the age of an individual." "Transactional data" refers to a "sequence of information that documents an exchange … used for the purpose of satisfying a request or event. The term includes records from mortgage, education, and employment entities." H.B. 1181 does not allow the companies or third-party verifiers to "retain any identifying information of the individual."
The court concluded that the age verification requirement was unconstitutional for various reasons, including that Ashcroft v. ACLU (II) (2004) and follow-on circuit court decisions struck down a similar federal law (COPA, the Child Online Protection Act). An excerpt that I thought was particularly closely connected to those precedents (though the court also made other arguments as well):
