Texas Ruling Shows You Can’t Regulate Online Pornography Like A Public Health Crisis
A Texas federal district judge granted a preliminary injunction blocking the enforcement of a controversial age verification law set to enter force September 1.
The court determined that House Bill (HB) 1181 was overly broad, even in the narrowest interpretations, and violated the First Amendment and Section 230 of the Communications Decency Act of 1996. No brainer, as Mike described earlier today.
But what made HB 1181 alarming to adult industry firms and digital rights activists is how the sponsors of the legislation, religious Texas state lawmakers, tried to impose pseudoscientific claims of porn addiction into statute. At length, Senior U.S. District Judge David Alan Ezra outlined that the requirement of labeling porn sites with public health warnings in a fashion similar to how other federal and state laws require sites advertising alcoholic beverages and tobacco products doesn't match the intent of protecting minors or the science.
Some of you reading this will likely be enraged by this, but pornography consumption in the United States isn't a public health crisis. Your porn addiction is not real. I make this statement because major medical groups and public health agencies the world over find little to no evidence of online sexual content being addictive.
This isn't to say that individuals who might struggle with pornography consumption aren't experiencing a degree of distress. Too much of anything can be damaging for some, but these tendencies are more related to compulsive behavior and a lack of regulation of that behavior. And there is a fine line between addiction and compulsion that can easily be checked by the proper interventions. But to say that you are a porn addict or that pornography is a public health crisis in the same context as, say, obesity or drunk driving among minors is a misinformed assessment that derives from social settings, your political views, the role of religion in your life, and how you perceive the role of sexuality in the culture. Studies overwhelmingly dispel claims of the porn addiction hypothesis attributing the fact that the people who predominantly report this are subject to hyper-religious environments that feature patriarchal structures that demonize consensual sexual expression outside of procreational purposes. Anything outside of this is regarded as sinful and demonic to them.
Clearly this is my own annotation of the ruling, but Judge Ezra recognizes the lack of scientific and medical consensus on the claims drafted in the law.
House Bill 1181, in addition to requiring age assurance measures, requires adult entertainment sites such as Pornhub or xHamster to publish warnings ostensibly to warn minors of the supposed harms of pornography. A selection of these warnings feature the endorsement of the Texas Health and Human Services Commission.
Although these warnings carry the label Texas Health and Human Services,' it appears that the Texas of Health and Human Services Commission has not made these findings or announcements," writes Judge Ezra.
As already stated above, none of the major medical associations recognize any perceived public health harms from pornography. This goes toward additional sentiment that Ezra highlights, which include the fact that compelling a private enterprise to post government scripted communication that is unfounded and disputed is far-reaching. Ezra indicates that the relaxed standard for certain compelled disclosures applies if they contain purely factual and uncontroversial information.'" Or, in other words, the judge cites Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio and the Zauderer standard' that was discussed on a Techdirt podcast last year.
The Zauderer standard allows governments to compel certain commercial speech situationally without any violation of the advertiser's First Amendment rights. Think of the compelled commercial speech tobacco product manufacturers have to place on their packs of cigarettes. Messaging is clear that smoking could kill people and is the leading cause of preventable death in the United States. It is unreasonable to warn adults about the dangers of legal pornography in order to protect minors. But even assuming this was a cognizable interest, Zauderer would still not apply," the judge stated. He added that the requirement set out for the typeface and font size was burdensome, in addition to requiring messaging for a mental health helpline.
It does not assert a fact, and instead requires companies to post the number of a mental health hotline," continues Ezra. The implication, when viewers see the notice, is that consumption of pornography (or any sexual material) is so associated with mental illness that those viewing it should consider seeking professional crisis help. The statement itself is not factual, and it necessarily places a severe stigma on both the websites and its visitors."
This speaks volumes. The ideological underpinnings of the law are clear and show very little basis in fact.
Per the judge's sentiments, such an attempt at compelling commercial speech for the supposed benefit of the general public is total bullshit. And, he recognizes that the health disclosure requirement frames information that is factually disputed." Plaintiffs introduce substantial evidence showing that Texas's health disclosures are either inaccurate or contested byexisting medical research," Ezra concludes.
Considering this information, it's even clearer that you cannot regulate online pornography, or any type of protected form of expression, through the guise of public health and safety. This is simply a vehicle for moralistic paternalists looking to restrict and even censor forms of speech that they disfavor.
That's not how this works, Texas.
Michael McGrady is the contributing editor at AVN.com.