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Texas may pass a law requiring age verification systems on pornographic Internet sites, the U. S. Court of Appeals for the Fifth Circuit ruled Thursday. U. S. sites to “display warnings about the effects of pornography consumption. “
In a 2-1 decision, judges ruled that “the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography. Therefore, the age-verification requirement does not violate the First Amendment.”
The Texas law has been challenged by the owners of Pornhub and other adult websites, as well as an adult industry lobbying organization called the Free Speech Coalition. “We strongly disagree with the Court’s majority’s investigation,” the Free Speech Coalition said. “As Justice [Patrick] Higginbotham’s dissenting opinion makes clear, this ruling violates decades of Supreme Court precedent. “
A U. S. District Court The U. S. Department of Homeland Security issued an initial injunction blocking enforcement of the law in August 2023, finding that “plaintiffs have shown that their First Amendment rights would likely be violated if the law went into effect and that they would suffer irreparable harm. “harm in the absence of a court order. “
But a few weeks later, the Fifth Circuit issued a transitory order that allowed the law to go into effect in September 2023. Last week’s new ruling addressed the merits of the initial injunction.
The 5th Circuit, generally regarded as one of the most conservative appeals courts, found that the Texas porn-site law should be reviewed on the “rational-basis” standard and not under strict scrutiny. The court panel majority pointed to Ginsberg v. New York, a 1968 Supreme Court ruling about the sale of “girlie” magazines to a 16-year-old at a lunch counter. The Supreme Court in that case upheld a New York criminal obscenity statute that prohibited the knowing sale of obscene materials to minors.
The same precept applies to the Internet, according to the majority of the Fifth Circuit. ” Since it is never apparent whether an Internet user is an adult or a child, any attempt to identify the user will involve adults in some way. . . Recommending that coverage of young people would be so complicated is inconsistent with Ginsberg’s view, where rational research is required. “It is sufficient even though adults would possibly have to identify themselves to buy magazines for girls,” the ruling reads.
As Eric Goldman, a law professor at Santa Clara University, has written, the majority of the Fifth Circuit panel holds that the opinion of Ginsberg, 56, who dealt with offline retailers, governs Conlaw’s investigation of the utterly exaggerated investigation of Reno v. ACLU of 1997 and Ashcroft v. ACLU 2004, both related to the Internet.
In his dissent, Justice Higginbotham said the majority’s attempts to distinguish Ginsberg from subsequent decisions are “not convincing. “While “Ginsberg remains smart law and unquestionably recognizes the government’s strength to protect young people from age-inappropriate content,” the Supreme Court “has relentlessly implemented strict scrutiny of content-based regulations that restrict adults’ access to speech,” he wrote.
The Texas law “limits access to documents that would possibly be denied to minors but remain constitutionally for adults,” Higginbotham wrote. “It follows that the law is open to scrutiny because it limits adults’ access to expression through the use of a content-based approach. “difference, if that speech is destructive to minors. “
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