AUSTIN — Texas’ interim attorney general, Angela Colmenero, on Tuesday issued a response to the Free Speech Coalition (FSC) lawsuit against the state’s controversial age verification law, contending that adult content is “obscene” and therefore not entitled to First Amendment protections.
As XBIZ reported, the Republican-authored HB 1181 was passed by the Texas legislature with bipartisan support in May and will go into effect September 1.
The new Texas age verification law — part of a state-by-state campaign by religious conservatives and anti-porn activists to outlaw all sexual material online — compels adult websites to post pseudoscientific anti-porn propaganda disclaimers declaring that “pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses and weakens brain function.”
Earlier this month, FSC filed a legal challenge in Texas over HB 1181, with an array of adult platforms and workers joining as co-plaintiffs.
In her reply to the lawsuit, Colmenero argued that HB 1181 does not violate the plaintiffs’ constitutional rights “because the material is obscene, and some of the plaintiffs are foreign companies,” Austin NBC news station KXAN reported.
Colmenero’s line of argument is consistent with the strategy of the anti-porn crusaders behind the bill, many of whom have publicly acknowledged that the real purpose of these state-by-state “age verification” bills is to reinstate obscenity prosecutions of all adult content at the federal level.
“Porn is absolutely terrible for our kids,” Colmenero wrote. “They are ‘particularly susceptible’ to porn because their brains are underdeveloped. Our kids may be more likely to emulate what they see in porn, even if it involves violence or coercion.”
Colmenero argued that the law is constitutional because it is a First Amendment case, and she considers all affected adult content “obscene” and therefore not protected under the First Amendment.
Industry attorney and noted First Amendment expert Lawrence Walters, of the Walters Law Group, told XBIZ that Colmenero's response "invites the district court to revisit the Supreme Court’s established and binding decision in Miller v. California, and goes on to suggest that modern adult content 'is obscene' and therefore not deserving of First Amendment protection."
The state’s response, Walters added, also disregards "clear legal precedent" declaring similar age verification and forced speech laws unconstitutional.
Colmenero's arguments, he concluded, "are meritless and dangerous to established free speech jurisprudence.”
The Revolving Door of the Texas AG Office
Colmenero is the second interim AG appointed by Republican Gov. Greg Abbott to serve in place of Texas AG Ken Paxton, who was suspended in May after being impeached, with bipartisan support, by the Republican-controlled state House. Prior to her appointment last month, Colmenero served as Abbott's deputy chief of staff. The former interim AG, Abbott's erstwhile secretary of state, John Scott, left the position after seven weeks when he came under scrutiny for his role in a controversial lawsuit.
Attorneys for the FSC and the other plaintiffs immediately filed a reply to Colmenero, arguing her response “concedes dispositive points, such as the absence of any satisfactory justification for discouraging consumption of adult content by adults, which the State neither denies is a statutory purpose nor defends.”
Arguing for a preliminary injunction, which would delay enactment of the new law until it can be litigated in court, the plaintiffs noted that the state’s defense of the law was “pitched in part as a bid to change Supreme Court precedent,” something they labeled “not likely to succeed when measured against the law as it exists today and the current record. The likely result here is the same one that the Supreme Court and lower courts have repeatedly and consistently reached when invalidating laws, such as the Act, that limit adults’ access to adult content under the guise of protecting minors, without accounting for less restrictive alternatives.”
As XBIZ reported on Tuesday, the Texas Department of Health and Human Services has declined to confirm or deny whether the “health warnings” mandated by HB 1181 are supported by any official documentation or statement produced by that office.
A hearing on FSC’s motion for a preliminary injunction is scheduled for Wednesday.