On Monday, September 25, 2023, America’s Future filed an Amicus brief with the United States Court of Appeals for the Fifth Circuit in Free Speech Coalition, Inc. (FSC), et al. v Angela Colmenero, Attorney General, State of Texas Dkt. 23-50627. Five nonprofit organizations from around the country joined our Amicus brief.
The brief was filed in support of the State of Texas in its pursuit to protect children. As the brief explains, Texas enacted H.B. 1181 on June 12, 2023, “requiring companies that produce or distribute pornographic material that is harmful to minors to have age-verification capability to ensure that the companies did not distribute the material to minors.” Upon the bill becoming law, FSC sued to enjoin Texas from enforcement based on First Amendment speech and expression grounds. However, though pornographic content is “speech,” courts find it obscene, and therefore it receives much less protection.
Over 80 years ago, the Supreme Court of the United States (SCOTUS) established four well-defined exceptions to free speech in Chaplinsky v New Hampshire (1942). If speech falls into one of the four exceptions, government may regulate it; however, to pass constitutional muster, regulations must be narrowly tailored and use the least restrictive means available.
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words.
In this case, the district court issued an injunction stopping Texas from enforcing its law against companies owning pornography websites because the court viewed Texas as having not narrowly tailored its law because 1) the law covers at least some material that might not be “obscene,” and 2) it might inadvertently restrict content legally provided to adults. Disappointingly, the court also decided that requiring pornographic website companies to verify the actual age of its users is “not the least restrictive means available” to protect children against accessing obscene materials.
Although not discussed expressly by the lower court in this case, the brief explains that the “prevailing judicial attitude is that states have no authority to protect public morality in the area of obscenity.” We urge the Fifth Circuit to vacate the lower court injunction and, as the brief plainly states, allow Texas to protect minors of that state against the corrosive influence of pornography.