NEW ORLEANS, La. – In an opinion published Thursday, the U.S. Court of Appeals for the Fifth Circuit vacated in part a preliminary injunction issued by U.S. District Court Judge David Ezra in the Free Speech Coalition’s challenge to Texas’ HB 1181, which requires adult websites to implement a state approved age-verification scheme and to publish “public health warnings” about the purported harms of pornography on minors.

In a split ruling, the majority vacated the injunction with respect to the age-verification requirement, while affirming the injunction in regard to the statute’s mandated health warnings. The judges forming the majority were Jerry E. Smith and Jennifer Walker Elrod, while Patrick E. Higginbotham dissented. All three are Republican appointees, with Smith and Higginbotham appointed to the court by Ronald Reagan, and Elrod by George W. Bush.

In partially vacating the injunction, the majority found the district court applied the wrong standard of scrutiny in the case, holding that the “proper standard of review is rational-basis, not strict scrutiny.”

“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” Smith wrote for the majority. “Therefore, the age verification requirement does not violate the First Amendment.”

In finding this, the majority appeared to depart from relevant Supreme Court precedent, a fact highlighted by Higginbotham in his dissent. While the majority relied on the case Ginsburg v. New York to come to its conclusion, Higginbotham seems to have found that reliance puzzling.

“It is no failure of advocacy that the State has cited to no case since Ginsberg in which the Supreme Court applied rational basis review to regulations impinging adults’ access to protected speech,” Higginbotham wrote. “No such case exists. Instead, since Ginsberg, the Supreme Court has consistently applied strict scrutiny to content-based regulations that infringe upon adults’ protected speech.”

The majority and Higginbotham were aligned, however, on the question of whether the public health warnings mandated by the state are constitutional, with all three judges agreeing they are not.

“Texas does not adequately tailor the warnings to the (State’s) interest,” the majority found. “As the district court noted, because of the age-verification requirements, those warnings displayed on the landing page and subsequent pages will presumably not reach any minors. To the degree that minors do see the warnings, the warnings’ language seems beyond the average child’s reading comprehension ability: They use multisyllabic, scientific words and phrases such as ‘biologically addictive,’ ‘desensitizes brain reward circuits,’ and ‘conditioned responses.’ Therefore, the warnings are too broad reasonably to fit the interest. Further, even if scientific findings supported the warnings… Texas has made no showing that they will discourage minors who have circumvented the age restrictions from accessing pornography.”

The crux of the disagreement between Higginbotham and the majority was the question of the proper standard of review, which Higginbotham maintains is strict scrutiny, not the lower threshold of rational review endorsed by the majority.

“The district court found the State ‘largely concede[d]’ that strict scrutiny should apply, but looking to Ginsberg, the State now asks this Court to find that this content-based restriction does not warrant strict scrutiny.” Higginbotham wrote. “While the majority credits this argument, I cannot—for Ginsberg does not here call for rational basis review, and the Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech.”

In a statement issued Thursday, the FSC said the organization “disagree(s) strenuously with the analysis of the Court majority.”

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.’”

FSC further noted that, in reference to Judge Ezra’s decision to issue the preliminary injunction, Higginbotham ended his dissent by writing of Ezra “the able veteran district judge did not err in finding a likelihood of success on the merits…Facts matter. Facts decide cases and trial is their proper forum.”

“Our battle, of course, is just beginning,” the FSC added. “Unfortunately, we’ve already seen how this designation has been weaponized to censor and ban LGBTQ+ literature, reproductive rights resources, sex education, art, and healthcare. Sexual expression, online and off, has been and continues to be the canary in the coal mine of free speech. Many of the First Amendment protections Americans hold dear are the result of hard battles fought by the adult industry and others over issues such as these. None of these battles has ever been simple or easy, though they have been important and just.

“Over the coming days, we will begin to discuss our next steps in regard to both this lawsuit and others and will keep our members informed of our progress,” the FSC concluded. “Should anyone be served with a lawsuit by the state of Texas, or any other state, we urge you to contact the Free Speech Coalition immediately.”

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