Court Also Strikes Down “Public Health Warning” for Porn Sites
From today’s long decision in Free Speech Coalition, Inc. v. Colmenero, by Judge David Alan Ezra (W.D. Tex.) (see here for excerpts from the part of the decision that strikes down the separate age-verification requirement):
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:
TEXAS HEALTH AND HUMAN SERVICES WARNING:
Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.
TEXAS HEALTH AND HUMAN SERVICES WARNING:
Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.
TEXAS HEALTH AND HUMAN SERVICES WARNING:
Pornography increases the demand for prostitution, child exploitation, and child pornography.
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:
1-800-662-HELP (4357) THIS HELPLINE IS A FREE, CONFIDENTIAL INFORMATION SERVICE (IN ENGLISH OR SPANISH) OPEN 24 HOURS PER DAY, FOR INDIVIDUALS AND FAMILY MEMBERS FACING MENTAL HEALTH OR SUBSTANCE USE DISORDERS. THE SERVICE PROVIDES REFERRAL TO LOCAL TREATMENT FACILITIES, SUPPORT GROUPS, AND COMMUNITY BASED ORGANIZATIONS.
The court held that these requirements were unconstitutional speech compulsions.
Although H.B. 1181 targets for-profit websites, the speech it regulates is likely non-commercial [in the sense of not just being commercial advertising -EV]…. “[S]exual expression which is indecent but not obscene is protected by the First Amendment.” At the outset, then, doctrines surrounding commercial speech disclosures likely do not apply, because the law regulates First Amendment-protected activity beyond “propos[ing] a commercial transaction.” …
{Speakers who promote the regulated subject matter must … place disclosures on [both] their advertisements and landing pages.} Defendant is on slightly stronger footing as to the requirements for advertisements, but the Court still finds them to be inextricably intertwined with non-commercial speech….
Volokh v. J
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