Some older readers may remember back in the ’90s when Las Vegas tried to rebrand itself as a family-friendly destination. That move saw the addition of more theme-park, activity-oriented ventures and a slight de-emphasis on the things that earned Vegas the nickname “Sin City.” So, my ex-wife and I decided to take her daughter and her cousin to Vegas to see the brand new Luxor. Of course, you can’t quite take all of the sin out of the city, and as we walked around, we saw plenty of men on the streets handing out cards advertising escort services, complete with photos of scantily clad women. The discarded cards were lying all over the sidewalks. To their credit, when these men saw us coming, they would always take a step back and put their cards behind their backs until we passed. So they had some modicum of consideration for families. Of course, today, we have people who make those jamokes look like Cotton Mather and Jonathan Edwards by comparison.
The “people” (and I use that term loosely) at PornHub undoubtedly spent the weekend celebrating. Variety reports that on August 31, U.S. District Judge David A. Ezra of the U.S. District Court for the Western District of Texas, ruled that Texas H.B. 1181, which would require age verification measures for porn sites, violates the First Amendment. In his ruling in “FREE SPEECH COALITION, INC., et al., Plaintiffs, vs. ANGELA COLMENERO, in her official capacity as Interim Attorney General for the State of Texas,” Ezra stated that the law, which requires age verification systems for adult sites along with what amounts to a health warning, was not “narrowly tailored” enough to achieve its goals. Ezra wrote:
It is uncontested that pornography is generally inappropriate for children, and the state may regulate a minor’s access to pornography. Ginsberg, 390 U.S. at 63. The strength of that interest alone, however, is not enough for a law to survive strict scrutiny. The state must still show that H.B. 1181 is narrowly tailored and the least restrictive means of advancing that interest. It fails on both these grounds.
Although the state defends H.B. 1181 as protecting minors, it is not tailored to this purpose. Rather, the law is severely underinclusive. When a statute is dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint discrimination under false auspices, or at a minimum simply does not serve its purported purpose.
As previously stated, the state has a compelling interest in preventing minors from accessing pornography. However, for many reasons, the disclosures are not narrowly tailored. First, and most critically, the disclosures do not target a minor’s access to pornography because a minor will be screened out by the age-verification mechanism. Assuming age-verification works, minors will not be able to access the content on pornographic websites. As a result, the law targets the group outside the state’s interest (i.e., adults who wish to view legal explicit materials).17 A law cannot be narrowly tailored to the state’s interest when it targets the group exactly outside of the government’s stated interest.
More generally, the state has not met its burden that the disclosures are narrowly tailored in general. They require large fonts, multiple warnings, and phone numbers to mental health helplines. But the state provides virtually no evidence that this is an effective method to combat children’s access to sexual material. The messages themselves do not mention health effects on minors. And the language requires a relatively high reading level, such as “potentially biologically addictive,” “desensitizes brain development,” and “increases conditioned responses.” H.B. 1181 § 129B.004. Quite plainly, these are not disclosures that most minors would understand. Moreover, the disclosures are restrictive, impinging on the website’s First Amendment expression by forcing them to speak government messages that have not been shown to reduce or deter minors’ access to pornography. See 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2312 (2023) (“[T]he government may not compel a person to speak its own preferred messages.”). Under strict scrutiny, the disclosures do not survive.
In the end, we know why PornHub and the Free Speech Coalition are celebrating. And the reason is not because the First Amendment was vindicated. It is because PornHub can continue to exploit and commodify women, children, and even men, whether as willing or unwilling participants or as consumers. PornHub is celebrating the protection of its bottom line. Some may argue that Texas needs to pass a better law, and that its legislators need to go back to the drawing board. And hopefully they will. Others will argue that kids will find porn online anyway, and that it is the parents’ problem — not the company’s issue. Whatever one may think about that, do we need to hold the door open for young eyes and minds to be exposed to such things?
Related: Pew Research: Democrats Value Free Speech Far Less than Republicans
As the owners of PornHub recover from their champagne hangovers and Texas lawmakers draft something that can survive a court challenge, the irony should not be lost on you that someone who publishes an unapproved opinion about certain medical conditions or treatments, gender expressions, environmental issues, or even elementary school curricula risks the wrath of the Ban Hammer from Hell. Meanwhile, PornHub remains free to ply its trade.
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