CHICAGO — The 7th Circuit Court of Appeals on Friday allowed the Indiana age verification law for adult content to go into effect, staying a lower court’s injunction blocking enforcement.
As XBIZ reported, a U.S. district court in Indiana previously blocked the law from taking effect on its originally scheduled date of July 1.
On Friday, the federal appeals court — which has a majority of conservative judges appointed by Republican presidents — ruled that Indiana’s SEA 17 was “functionally identical” to Texas’ age verification law, which went into effect in April. The U.S. Supreme Court has agreed to hear a Free Speech Coalition-led challenge to the Texas law next term, but declined to issue a preliminary injunction delaying its enforcement in the meantime.
Free Speech Coalition released a statement about the 7th Circuit Court decision, warning adult businesses that Indiana’s attorney general can now begin enforcing the law, which FSC noted “permits residents of Indiana to bring a civil suit against sites with ‘material harmful to minors.’”
Judges Frank H. Easterbrook (a Ronald Reagan appointee) and Amy J. St. Eve (a George W. Bush appointee) of the 7th Circuit wrote that the court sees no reason why Texas’ law may be enforced “pending the decision on the merits” while Indiana’s may not.
“Functionally identical statutes should be treated the same while the Supreme Court considers the matter,” they added.
Judge Ilana Diamond Rovner (a George H.W. Bush appointee) wrote a partial dissent, the Indiana Capital Chronicle reported, in which she argued against allowing the Indiana law to take effect, on the grounds that while the Texas law was already in effect when SCOTUS declined to stop it, the Indiana law has not yet gone into effect. The difference, Rovner wrote, is that the Indiana plaintiffs have not yet had to comply with the “burdensome requirements” of their state's law, whereas in Texas, the plaintiffs “were already subjected to its burdens.” In Texas, she opined, SCOTUS “merely left the case as it found it.”
Rovner has senior, semi-retired status, and earlier this year told President Biden she planned to retire. Although Rovner was nominated by a Republican president, many Trump- and MAGA-aligned conservatives, as well as legal commentators who are loyal disciples of the late Justice Antonin Scalia, consider her liberal-leaning.
Industry Attorneys Condemn Ruling
Industry attorney and First Amendment expert Lawrence Walters of Walters Law Group told XBIZ that the damage done by “the erroneous 5th Circuit decision in the Texas case” continues to be compounded by the 7th Circuit’s decision.
“The fact that SCOTUS decided to grant review should have indicated to the 7th Circuit that there are significant constitutional concerns with these age verification laws and resulted in continuation of the injunction granted by the district court in Indiana,” Walters explained. “The dissent in the 7th Circuit is correct that the procedural posture of the Indiana case is different, and should have resulted in the injunction continuing throughout the appellate process since the law was never in effect.”
Walters added, “Unfortunately, now adult website operators will likely be required to bear the substantial burdens of this law being allowed to go into effect before the merits of the constitutional challenge are considered by the 7th Circuit.”
Adults in Indiana, he noted, will likewise have their First Amendment right to access constitutionally protected adult content “impinged by being required to undergo age verification, along with being exposed to the associated dangers of data leaks.”
Walters said he remains hopeful that SCOTUS “will right the ship by demanding that these laws be subjected to strict scrutiny review as similar laws have been for decades.”
Fellow industry attorney Corey Silverstein, of Silverstein Legal, told XBIZ he also believes that U.S. District Court Judge Richard Young’s preliminary injunction against enforcement should not have been stayed.
“Judge Young’s lengthy preliminary injunction is spot-on and given that SCOTUS has already agreed to hear the challenge to Texas’ similar age verification law, staying the injunction makes little sense,” Silverstein explained. “I remain confident that the U.S. Supreme Court will stand behind the First Amendment and existing case precedent and clean up the mess that so many states have made.”
