Free Speech Coal. v. Colmenero
| Docket Number | 1:23-CV-917-DAE |
| Decision Date | 31 August 2023 |
| Parties | FREE SPEECH COALITION, INC., et al., Plaintiffs, v. ANGELA COLMENERO, in her official capacity as Interim Attorney General for the State of Texas, Defendant. |
| Court | U.S. District Court — Western District of Texas |
ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
Before the Court is Plaintiff Free Speech Coalition, et al.'s (“Plaintiffs”) motion for a preliminary injunction (Dkt. # 5). On August 23, the Court held a hearing on the matter. Upon careful consideration of the arguments raised by the parties in the briefing and at the hearing, the Court-for reasons that follow- GRANTS Plaintiffs' motion as to their First Amendment claims and GRANTS the motion in part as to their Section 230 claims. Defendant Colmenero is preliminarily ENJOINED from enforcing H.B. 1181.
This case concerns a law passed by the State of Texas that restricts access to pornographic websites by requiring digital age verification methods and warnings about the alleged harms caused by pornography. See Act of June 12, 2023, Ch. 676, § 2 (H.B. 1181) Tex. Sess. Law Serv (Vernon's) (hereinafter, “HB 1181”). Plaintiffs, comprised of online pornography websites performers, and advocates, bring suit to stop the law from being enforced before it takes effect on September 1, 2023.
Plaintiffs can largely be split into three categories. First is Free Speech Coalition, Inc. (“Free Speech Coalition”), a nonprofit trade association of adult content performers, producers, distributors, and retailers. (Compl., Dkt. # 1, at 4). Free Speech Coalition assists its members in their First Amendment expression, and its members include adult content performers and businesses that produce and sell adult content. (Id.) Free Speech Coalition alleges that “many of [its] members are . . . gravely concerned about the consequences of [H.B. 1181], but who fear for their safety should they come forward to challenge [H.B. 1181] in court.” (Id.). Free Speech Coalition also alleges that it has been forced to divert resources from its normal day-to-day activities in order to track legislation, meet with attorneys, and engage in risk-management to minimize the harm that age-verification statutes like H.B. 1181 pose to their members.
Second, several Plaintiffs are companies that produce, sell, and license adult content. Many of these are incorporated abroad, while others are U.S.-based companies. Plaintiff MG Premium Ltd. is a Cypriot company that operates SpiceVids.com, Brazzers.com, and FakeTaxi.com, all of which are subscriptionbased adult-content websites. (Id. at 4-5). MG Premium Ltd writes, hires, and does pre- and post-production work for the adult videos, uploading them to their own sites and to others. (Id. at 5). Similarly, Plaintiff MG Freesites Ltd operates Pornhub.com, which hosts uploaded content owned, copyrighted, and controlled by third parties. (Id.) Plaintiff WebGroup Czech Republic, a.s., operates xvideos.com, a free website that hosts adult videos. (Id.) Plaintiff NKL Associates, s.r.o, operates xnxx.com, which similarly hosts free adult videos. (Id.) Plaintiff Sonesta Technologies, s.r.o. operates BangBros.com, a subscription-based website offering adult videos. (Id. at 6). Plaintiff Yellow Production, s.r.o. owns and produces FakeTaxi and licenses its content to other adult websites, including Pornhub, Xvideos, Xnxx, and SpiceVids.
Three website Plaintiffs reside and principally operate in the United States. Plaintiff Paper Street Media, LLC resides in Florida and operates TeamSkeet, a network of subscription-based adult websites. Paper Street owns the intellectual property rights to these videos, and shoots with adult performers, writes the scripts, and hires and employs the production teams. (Id.) Plaintiff Neptune Media likewise resides in Florida and operates the MYLF adult content network, which is similarly comprised of several adult-content subscription services and websites. (Id. at 7). Plaintiffs MediaME SRL, a Romanian company, hosts free adult entertainment websites, while Plaintiff Midus Holdings, Inc., another Florida company, operates subscription-based sites. (Id. at 7-8). These companies operating in and outside the United States (collectively, “the Adult Video Companies”) oppose H.B. 1181 and allege that it would unconstitutionally restrict their free expression and compel them to post government-mandated speech. They also oppose the law on the basis that it violates the immunity vested on website publishers by Section 230 of the Communications Decadency Act (“CDA”).
Third and finally, Plaintiff Jane Doe is an adult performer whose content is featured on several adult websites, including Pornhub.com, as well as CamSoda, Sextpanther, and MyFreeCams. (Id.; Doe Decl., Dkt. 5-6).[1] Doe opposes the restrictions that H.B. 1181 would place on their ability to reach audiences and is against the messages websites would have to convey about the purported harmful effects of pornography. (Id.)
Defendant Angela Colmenero is sued in her official capacity as Interim Attorney General for the State of Texas. Plaintiffs bring suit against her under the Ex parte Young exception to sovereign immunity, arguing that she has the authority to enforce H.B. 1181. (Id. at 3).
On June 12, 2023, Texas Governor Greg Abbott signed H.B. 1181 into law. (Id. at 8). H.B. 1181 is set to take effect on September 1, 2023. H.B. 1181 contains two requirements, both of which are challenged in this litigation. First, the law requires websites to use “reasonable age verification methods . . . to verify that an individual attempting to access the material is 18 years of age or older.” H.B. 1181 § 129B.002. Second, the law requires adult content websites to post a warning about the purported harmful effects of pornography and a national helpline for people with mental health disorders. H.B. 1181 § 129B.003.
The law defines “sexual material harmful to minors” as including any material that “(A) the average person applying contemporary community standards would find, taking the material as a whole is and designed to appeal or pander to the prurient interest” to minors, (B) is patently offensive to minors, and (C) “taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” Id. § 129b.001.
The law regulates a “commercial entity that knowingly and intentionally publishes or distributes material on an Internet website, including a social media platform, more than one-third of which is sexual material harmful to minors ....” Id. § 129B.002. H.B. 1181 requires these companies to “comply with a commercial age verification system that verifies age using: (A) government-issued identification; or (B) a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.” H.B. 1181 § 129B.003. “Transactional data” refers to a Id. H.B. 1181 does not allow the companies or third-party verifiers to “retain any identifying information of the individual.” Id. § 129B.002.
In addition to the age verification, H.B. 1181 requires adult content sites to post a “public health warning” about the psychological dangers of pornography. In 14-point font or larger, sites must post:
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.
Finally, the law requires that websites post the number of a mental health hotline, with the following information:
H.B. 1181 authorizes the Texas Attorney General to bring an action in state court to enjoin the violation and recover up to $10,000.00 for each day of a violation, if it is “in the public interest.” Id. § 129B.005. If a minor accesses sexual material, the Attorney General may seek an additional amount up to $250,000.00 per violation. Id.
A. Preliminary Injunction
A preliminary injunction is an extraordinary remedy, and the decision to grant such relief is to be treated as the exception rather than the rule. Valley v. Rapides Par Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). “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.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking injunctive relief carries the...
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