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Pornhub has disabled its website in Texas following a court ruling that upheld a state law requiring age-verification systems on porn websites. Visitors to pornhub.com in Texas are now greeted with a message calling the Texas law “ineffective, haphazard, and dangerous.”
“As you may know, your elected officials in Texas are requiring us to verify your age before allowing you access to our website. Not only does this impinge on the rights of adults to access protected speech, it fails strict scrutiny by employing the least effective and yet also most restrictive means of accomplishing Texas’s stated purpose of allegedly protecting minors,” Pornhub’s message said.
Pornhub said it has “made the difficult decision to completely disable access to our website in Texas. In doing so, we are complying with the law, as we always do, but hope that governments around the world will implement laws that actually protect the safety and security of users.”
The same message was posted on other sites owned by the same company, including RedTube, YouPorn, and Brazzers. Pornhub has also blocked its website in Arkansas, Mississippi, Montana, North Carolina, Utah, and Virginia in protest of similar laws. VPN services can be used to evade the blocks and to test out which states have been blocked by Pornhub.
Texas AG sued Pornhub, says “good riddance”
The US Court of Appeals for the 5th Circuit upheld the Texas law in a 2–1 decision last week. The 5th Circuit appeals court had previously issued a temporary stay that allowed the law to take effect in September 2023.
Texas Attorney General Ken Paxton last month sued Pornhub owner Aylo (formerly MindGeek) for violating the law. Paxton’s complaint in Travis County District Court sought civil penalties of up to $10,000 for each day since the law took effect on September 19, 2023.
“Sites like Pornhub are on the run because Texas has a law that aims to prevent them from showing harmful, obscene material to children,” Paxton wrote yesterday. “We recently secured a major victory against PornHub and other sites that sought to block this law from taking effect. In Texas, companies cannot get away with showing porn to children. If they don’t want to comply, good riddance.”
The 5th Circuit panel majority held that the Texas porn-site law should be reviewed on the “rational-basis” standard and not under strict scrutiny. In a dissent, Judge Patrick Higginbotham wrote that the law should face strict scrutiny because it “limits access to materials that may be denied to minors but remain constitutionally protected speech for adults.”
“[T]he Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech,” Higginbotham wrote.
Pornhub wants device-based age verification instead
Pornhub’s message to Texas users argued that “providing identification every time you want to visit an adult platform is not an effective solution for protecting users online, and in fact, will put minors and your privacy at risk.” Pornhub said that in other states with age-verification laws, “such bills have failed to protect minors, by driving users from those few websites which comply, to the thousands of websites, with far fewer safety measures in place, which do not comply.”
Pornhub’s message advocated for a device-based approach to age verification in which “personal information that is used to verify the user’s age is either shared in-person at an authorized retailer, inputted locally into the user’s device, or stored on a network controlled by the device manufacturer or the supplier of the device’s operating system.”
Pornhub says this could be used to prevent underage users from accessing age-restricted content without requiring websites to verify ages themselves. “To come to fruition, such an approach requires the cooperation of manufacturers and operating-system providers,” Pornhub wrote.
The age-verification question could eventually go to the Supreme Court. “This opinion will be appealed to the Supreme Court, alongside other cases over statutes imposing mandatory age authentication,” Santa Clara University law professor Eric Goldman wrote.
The 5th Circuit panel majority’s analysis relied on Ginsberg v. New York, a 1968 Supreme Court ruling about the sale of “girlie” magazines to a 16-year-old at a lunch counter. Goldman criticized the 5th Circuit for relying on Ginsburg “instead of the squarely on-point 1997 Reno v. ACLU and 2004 Ashcroft v. ACLU opinions, both of which dealt with the Internet.” Goldman argued that decisions upholding laws like the Texas one could open the door to “rampant government censorship.”
The Free Speech Coalition, an adult-industry lobby group that sued Texas over its law, said it “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.” The group is considering its “next steps in regard to both this lawsuit and others.”