Texas Sues Pornhub for Failing to Check IDs
A federal judge in an ongoing case called the porn age-check scheme unconstitutional. Texas Attorney General Ken Paxton doesn't seem to care.
The first age verification lawsuit against a major web porn purveyor is here. On Monday, Texas Attorney General Ken Paxton announced that he was suing Pornhub's parent company, Aylo.
Paxton claims it is violating HB 1181, a Texas law passed last year. The new law requires porn websites to use "reasonable age verification methods" to make sure viewers are 18 or above and to post warnings about porn's alleged harms, along with a number for a national mental-health hotline.
"Texas has a right to protect its children from the detrimental effects of pornographic content," said Paxton in a press release. "I look forward to holding any company accountable that violates our age verification laws intended to prevent minors from being exposed to harmful, obscene material on the internet."
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Paxton's use of "obscene" here is somewhat misleading. While web porn might be "obscene" to some under the colloquial meaning of the word, it's not de facto legally obscene—which is to say, it is generally protected by the First Amendment. Obscenity falls under an exception to free speech in the U.S., but far from all (or even most) porn is obscenity.
What Texas is trying to do here, then, is place a significant regulation on First Amendment-protected speech—and one a judge has already declared this unconstitutional, in a challenge to HB 1181 that's still ongoing. But Texas is a state that never seems to shy away from unconstitutional laws, particularly where tech or sex are concerned. (See, for instance, the Texas social media law that went before the Supreme Court this week.) So—in a move that's galling but not surprising—Paxton apparently isn't going to wait for the challenge to Texas' age verification law to conclude before trying to levy more than $1.6 million in fines against the Canadian company Aylo.
"Ineffective, Haphazard, and Dangerous"
Aylo is behind an array of adult websites, including America's most popular XXX platform, Pornhub, and several other free, user-uploaded porn platforms. It also owns a webcamming site, a site where sex workers can sell photos and clips, and some subscription porn services.
Aylo was formerly known as MindGeek but changed its name after being acquired last year by Ontario-based private equity firm Ethical Capital Partners. The new owners are aiming to be more engaged in shaping public policy and more responsive to the media. They also seem more willing to work with government partners—to an extent.
Aylo's strategy in complying with state age verification laws so far has basically been twofold. In Louisiana, where the state has set up a third-party age verification service (LA Wallet), Aylo is willing to require verification. But the company draws the line at collecting and storing IDs itself. Rather than do so in states—such as Arkansas and Utah—where it's currently the only way to comply, Aylo has instead blocked visitors from those states from viewing porn.
"The way many jurisdictions worldwide have chosen to implement age verification is ineffective, haphazard, and dangerous," Aylo said in a statement earlier this year. "Any regulations that require hundreds of thousands of adult sites to collect significant amounts of highly sensitive personal information is putting user safety in jeopardy. Moreover, as experience has demonstrated, unless properly enforced, users will simply access non-compliant sites or find other methods of evading these laws."
"We will always comply with the law, but we hope that governments around the world will implement laws that actually protect the safety and security of users," Aylo added.
There are a variety of ways in which websites—be they porn platforms, social media platforms, or whatever—could end up verifying user ages. But the simplest method is to require all users to upload a copy of a government-issued ID, and this is the one most of this age check debate is focused on.
Aylo suggested that device-based verification is a better way forward, calling it "the best solution to make the internet safer, preserve user privacy, and prevent children from accessing adult content." The technology to do this already exists, but "what is required is the political and social will to make it happen," it said.
Porn Fights Back
In Texas, Aylo has neither blocked users nor given in to the government's demands. Instead, it sued.
Joining with the Free Speech Coalition—an adult-industry trade coalition that's also challenging age-check laws in other states—it argues that Texas HB 1181 violates the First Amendment in multiple ways:
First, the Act's age verification requirement is overbroad and fails strict scrutiny. Despite impinging on the rights of adults to access protected speech, it fails strict scrutiny by employing the least effective and yet also the most restrictive means of accomplishing Texas's stated purpose of allegedly protecting minors.… Second, the Act's "health warning" requirement is a classic example of the State mandating an orthodox viewpoint on a controversial issue. Texas could easily spread its ideological, anti-pornography message through public service announcements and the like without foisting its viewpoint upon others through mandated statements that are a mix of falsehoods, discredited pseudo-science, and baseless accusations. Third…the Act is incurably vague as to its fundamental requirements, providing neither a coherent standard for assessing which websites it applies to, nor adequate guidance on what "age verification" entails.
Groups including the American Civil Liberties Union (ACLU), the Center for Democracy & Technology, TechFreedom, and the Foundation for Individual Rights and Expression (FIRE) all joined in official opposition to the law. "Texas' age-verification law, HB 1181, violates the First Amendment in two fundamental ways: It burdens Texans' ability to access lawful sexual material online, and it compels websites that host such content to voice the government's criticism of it," they argued in an amicus brief.
In September, U.S. District Judge David Alan Ezra concluded that HB 1181 was, indeed, unconstitutional and blocked the state from enforcing the law as the case moved forward.
But the state appealed, and the U.S. Court of Appeals for the 5th Circuit stayed the lower court's injunction, leaving Texas free to start enforcing the law even as the challenge to it played out.
So, that case is still ongoing and the law could yet be deemed unenforceable. Nonetheless, Paxton is going ahead and attempting to enforce the law—waging this battle on two fronts, instead of one. (Almost as if this is more about getting publicity for Paxton rather than figuring out the best way to craft and enforce an effective, constitutional policy.)
Paxton's Latest Stunt
Paxton is now seeking a court order "to require appropriate age verification safeguards and potentially millions of dollars in civil penalties for failing to abide by the law."
Under HB 1181, companies are subject to a $10,000 per day fine for failing to verify visitor ages plus a $250,000 fine if any minor happens to see porn on the website.
Paxton seeks to impose fines on Aylo of $10,00 per day for every day since September 19, 2023, which is when the 5th Circuit first issued a stay on the lower court's block on enforcement. Aylo has violated HB 1181 for "at least 160 days and must pay a civil penalty of up to $1,600,000 plus up to $10,000 a day for each day after the date of filing," Paxton's suit states.
Whatever happens here will prove instructive as more and more states enact laws similar to HB 1181. So far, at least six states in addition to Texas have passed laws requiring porn platforms to card visitors and many others are considering doing so. In the first two months of 2024, at least seven states have introduced web porn age-check bills.
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