In an order issued yesterday, U.S. District Court Judge Robert Pitman denied the plaintiffs their request for a preliminary injunction which would bar enforcement of a new law prohibiting persons under 21 years of age from working at “sexually oriented businesses” (SOBs) in the state. The prohibition on adults aged 18-20 was established under a recently passed bill, S.B. 315.

In his order, Pitman found because S.B. 315 “is aimed at regulating the “time, place or manner” of employment at SOBs, rather than the message conveyed by employment at SOBs,”  the standard of intermediate scrutiny applies to the plaintiffs’ challenge to the law. As noted by this explanation provided by Cornell Law School, under intermediate scrutiny, the government merely needs to show that the challenged statute “furthers an important government interest” and does so by means that are “substantially related to that interest.” This is a lower bar to pass than the standard of strict scrutiny, under which “the legislature must have passed the law to further a ‘compelling governmental interest,’ and must have narrowly tailored the law to achieve that interest.”

In his order, Pitman observed that a plaintiff seeking a preliminary injunction “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Ultimately, Pitman found the plaintiffs failed on each of these fronts, with respect to their First and Fourteenth Amendment claims.

“In applying intermediate scrutiny to S.B. 315, the Court must evaluate the four factors outlined in O’Brien,” Pitman wrote, adding that under the O’Brien test,  “Texas must demonstrate that: (1) it has the constitutional authority to enact S.B. 315; (2) the law furthers an important or substantial government interest; (3) the government interest is unrelated to the suppression of free expression; and (4) the restriction is no greater than is essential to the furtherance of the government interest.”

“Plaintiffs argue that S.B. 315 fails on the second and fourth factors, arguing that it does not serve an important government interest and that its restrictions on the Individual Plaintiffs are greater than is essential to further the government’s interest,” Pitman continued. “Defendants respond that the Fifth Circuit’s decision in Doe I v. Landry, where the Fifth Circuit upheld an age-based restriction for exotic dancing at adult cabarets that sell alcohol, is dispositive with regard to the first three O’Brian factors, and counsels in favor of the government on the fourth factor.”

Pitman wrote that “the legislative history and testimony offered by Defendants are sufficient to support the conclusion that the State held a reasonable belief that S.B. 315 would serve to curb harmful secondary effects of SOBs,” adding that in contrast, the plaintiffs “failed to produce any ‘actual and convincing evidence’ that S.B. 315 ‘will not have any positive effect on the identified harms.'”

“As such, this factor likely weighs in favor of the government,” Pitman wrote.

“Plaintiffs have also failed to show that at this stage there is a likelihood that the fourth factor weighs in their favor,” Pitman continued. “Plaintiffs argue that ‘S.B. 315 ignores the evils sought to be eliminated while at the same time banning all protected expression that Plaintiffs may supply to an SOB in the course of their work.’ They point out that while the Louisiana statute at issue in Landry only set an age restriction on dancing at establishments that serve alcohol, here S.B. 315 bans all employment relationships between 18-20-year-olds and SOBs. Defendants respond by arguing that although S.B. 315 is broader than the statute at issue in Landry, the Court should respect the Texas legislature’s determination that any employment relationship between an individual under the age of 21 and an SOB ‘provides an opportunity for traffickers.'”

Pitman found that the state “the State has presented testimony supporting the contention that trafficking happens at SOBs other than adult cabarets and even Plaintiffs’ witnesses testified that trafficking occurs at certain SOBs with alarming frequency—indeed, Man testified that during her three months working at Baby Dolls in Dallas she met three women involved in trafficking. Furthermore, the State presented testimony that S.B. 315 is designed to prevent the exploitation of children, an interest that would be less effectively served absent the law.”

Pitman left the door open that the plaintiffs could provide stronger evidence for their claims at trial, writing that “discovery may reveal that the State’s purported interest in curbing trafficking is not served at all by S.B. 315’s age restrictions,” but added that at this time Plaintiffs’ have not presented evidence that ‘the government’s interest could be adequately served by some less-speech-restrictive alternative.'”

“As such, a preliminary injunction is not warranted at this time under Plaintiffs’ as-applied First Amendment claims,” Pitman held.

Similarly, Pitman allowed for the possibility that the plaintiffs may show better support for their facial overbreadth claims at trial, but didn’t meet their burden for the purposes of successfully arguing for a preliminary injunction.

“While further factual development may demonstrate that the unconstitutional applications of S.B. 315 and the amended statutes ‘are both real and substantial in relation to their previously legitimate application to children under the age of 18,’ at this stage Plaintiffs have failed to demonstrate that S.B. 315 likely threatens constitutionally protected speech outside the ambit of Texas’s attempts to end and prevent human trafficking at SOBs,” Pitman wrote.

Pitman then moved to the question of whether the plaintiffs had shown a “likelihood of success in establishing that the age restrictions on employment at SOBs are not rationally related to the State’s purported interest in curbing human trafficking.”

“Having found that Plaintiffs have failed to show a likelihood of success in showing that S.B. 315 fails to meet intermediate scrutiny, the Court similarly finds that Plaintiffs have failed to show that S.B. 315 is unlikely to meet the more deferential rational basis standard,” Pitman wrote. “Indeed, under a rational basis review, S.B. 315 would only be unconstitutional if it was shown to be ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare,’ and here the State has demonstrated a connection between the statute and the government’s interest in combatting human trafficking.”

“While S.B. 315 may not be the most effective way to combat trafficking and support its victims, given that rational basis review is a ‘notoriously deferential standard,’ the Court does not find that Plaintiffs have met their burden of showing that S.B. 315 is not rationally related to the government’s legitimate interest in curbing human trafficking,” Pitman added.

Pitman also found the plaintiffs were unlikely to succeed on the merits of their impermissible vagueness claim.

“Though Plaintiffs complain of confusion caused by S.B. 315’s failure to specify “what forms of employment or work are permissible,” the commonly understood language in the statute indicates that the law applies to all employment relationships between 18-to-20-year-olds and SOBs,” Pitman wrote. “Furthermore, having found that Plaintiffs have not demonstrated a likelihood of success in showing that S.B. 315 reaches a ‘substantial amount’ of protected conduct, the Court ‘should uphold the challenge only if the enactment is impermissibly vague in all of its applications.’ Given that under its plain language S.B. 315 applies to all employment relationships between SOBs and adults under the age of 21, and Plaintiffs base their vagueness challenge on the new statute’s failure to ‘explain what forms of employment or work are permissible,’ Plaintiffs have failed to show a likelihood of success on the merits of their vagueness challenge under the Fourteenth Amendment.”

“Having failed to show a likelihood of success on the merits of their First Amendment and Fourteenth Amendment due process claims, the Court finds that a preliminary injunction is not appropriate at this time and that it need not evaluate the remaining preliminary injunction factors,” Pitman concluded in his order.

YNOT previously reported on the plaintiffs’ proposed order for a preliminary injunction, a proposal with which Judge Pitman clearly did not concur. Pitman’s denial of the preliminary injunction does not mean the plaintiffs will ultimately lose the case, though. Although his assessment that the plaintiffs did not show a likelihood of success is not encouraging, further development of the factual record could later persuade the court that the law is overbroad, or threatens constitutionally protected speech.

YNOT will continue to follow the case and report on any substantial developments.

Gavel stock photo by Sora Shimazaki of Pexels