Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 1 of 81

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXASAUSTIN DIVISIONFREE SPEECH COALITION, INC., et §al.,§§
Plaintiffs,
§
§
vs.
§
§
ANGELA COLMENERO, in her§
official capacity as Interim Attorney§
General for the State of Texas,§§
Defendant.
§________________________________ §§§§§No. 1:23-CV-917-DAE

ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY
INJUNCTION
Before the Court is Plaintiff Free Speech Coalition, et al.’s (“Plaintiffs”)
motion for a preliminary injunction (Dkt. # 5). On August 23, the Court held ahearing on the matter. Upon careful consideration of the arguments raised by theparties in the briefing and at the hearing, the Court—for reasons that follow—
GRANTS Plaintiffs’ motion as to their First Amendment claims and GRANTS the
motion in part as to their Section 230 claims. Defendant Colmenero ispreliminarily ENJOINED from enforcing H.B. 1181.

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I. BACKGROUNDThis case concerns a law passed by the State of Texas that restricts access topornographic websites by requiring digital age verification methods and warnings
about the alleged harms caused by pornography. See Act of June 12, 2023, Ch. 676,
§ 2 (H.B. 1181) Tex. Sess. Law Serv. (Vernon’s) (hereinafter, “HB 1181”).
Plaintiffs, comprised of online pornography websites, performers, and advocates,
bring suit to stop the law from being enforced before it takes effect on September
1, 2023.
A.

The Parties

Plaintiffs can largely be split into three categories. First is Free Speech
Coalition, Inc. (“Free Speech Coalition”), a nonprofit trade association of adultcontent performers, producers, distributors, and retailers. (Compl., Dkt. # 1, at 4).
Free Speech Coalition assists its members in their First Amendment expression,and its members include adult content performers and businesses that produce andsell adult content. (Id.) Free Speech Coalition alleges that “many of [its] members
are . . . gravely concerned about the consequences of [H.B. 1181], but who fear for
their safety should they come forward to challenge [H.B. 1181] in court.” (Id.).
Free Speech Coalition also alleges that it has been forced to divert resources fromits normal day-to-day activities in order to track legislation, meet with attorneys,2Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 3 of 81

and engage in risk-management to minimize the harm that age-verification statutes
like H.B. 1181 pose to their members.
Second, several Plaintiffs are companies that produce, sell, and license adultcontent. Many of these are incorporated abroad, while others are U.S.-based
companies. Plaintiff MG Premium Ltd. is a Cypriot company that operates
SpiceVids.com, Brazzers.com, and FakeTaxi.com, all of which are subscriptionbased adult-content websites. (Id. at 4–5). MG Premium Ltd writes, hires, and does
pre- and post-production work for the adult videos, uploading them to their own
sites and to others. (Id. at 5). Similarly, Plaintiff MG Freesites Ltd operates
Pornhub.com, which hosts uploaded content owned, copyrighted, and controlled bythird parties. (Id.) Plaintiff WebGroup Czech Republic, a.s., operates xvideos.com,
a free website that hosts adult videos. (Id.) Plaintiff NKL Associates, s.r.o, operates
xnxx.com, which similarly hosts free adult videos. (Id.) Plaintiff Sonesta
Technologies, s.r.o. operates BangBros.com, a subscription-based website offering
adult videos. (Id. at 6). Plaintiff Yellow Production, s.r.o. owns and produces
FakeTaxi and licenses its content to other adult websites, including Pornhub,
Xvideos, Xnxx, and SpiceVids.
Three website Plaintiffs reside and principally operate in the United States.
Plaintiff Paper Street Media, LLC resides in Florida and operates TeamSkeet, a
network of subscription-based adult websites. Paper Street owns the intellectual3

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property rights to these videos, and shoots with adult performers, writes the scripts,
and hires and employs the production teams. (Id.) Plaintiff Neptune Media likewise
resides in Florida and operates the MYLF adult content network, which is similarlycomprised of several adult-content subscription services and websites. (Id. at 7).
Plaintiffs MediaME SRL, a Romanian company, hosts free adult entertainment
websites, while Plaintiff Midus Holdings, Inc., another Florida company, operates
subscription-based sites. (Id. at 7–8). These companies operating in and outside theUnited States (collectively, “the Adult Video Companies”) oppose H.B. 1181 andallege that it would unconstitutionally restrict their free expression and compel
them to post government-mandated speech. They also oppose the law on the basisthat it violates the immunity vested on website publishers by Section 230 of theCommunications Decadency Act (“CDA”).
Third and finally, Plaintiff Jane Doe is an adult performer whose content isfeatured on several adult websites, including Pornhub.com, as well as CamSoda,
Sextpanther, and MyFreeCams. (Id.; Doe Decl., Dkt. 5-6).1 Doe opposes the
restrictions that H.B. 1181 would place on their ability to reach audiences and is

As of the date of this order, Defendant has not challenged Jane Doe’s pseudonymity. Because herstanding is not independently necessary for Plaintiffs’ motion to succeed and because Doe has presented
facially legitimate concerns regarding intimidation, the Court will allow her to proceed pseudonymously
at this early and expedited stage. See U.S. Navy SEALs 1-26 v. Austin, 594 F. Supp. 3d 767, 782 n.5(N.D. Tex. 2022) (allowing preliminary injunction to proceed before resolving question of anonymity),
stay pending appeal denied by 27 F.4th 336 (5th Cir. 2022), appeal dismissed as moot 72 F.4th 666 (5thCir. 2023). However, the Court will order briefing on Doe’s ability to proceed pseudonymously following
the issuance of this order.
1

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against the messages websites would have to convey about the purported harmful
effects of pornography. (Id.)
Defendant Angela Colmenero is sued in her official capacity as Interim
Attorney General for the State of Texas. Plaintiffs bring suit against her under theEx parte Young exception to sovereign immunity, arguing that she has the authority
to enforce H.B. 1181. (Id. at 3).
B.

H.B. 1181

On June 12, 2023, Texas Governor Greg Abbott signed H.B. 1181 into law.
(Id. at 8). H.B. 1181 is set to take effect on September 1, 2023. H.B. 1181 contains
two requirements, both of which are challenged in this litigation. First, the law
requires websites to use “reasonable age verification methods . . . to verify that anindividual attempting to access the material is 18 years of age or older.” H.B. 1181
§ 129B.002. Second, the law requires adult content websites to post a warning
about the purported harmful effects of pornography and a national helpline forpeople with mental health disorders. H.B. 1181 § 129B.003.
The law defines “sexual material harmful to minors” as including any
material that “(A) the average person applying contemporary community standards
would find, taking the material as a whole is and designed to appeal or pander tothe prurient interest” to minors, (B) is patently offensive to minors, and (C) “taken

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as a whole, lacks serious literary, artistic, political, or scientific value for minors.”
Id. § 129b.001.
The law regulates a “commercial entity that knowingly and intentionallypublishes or distributes material on an Internet website, including a social media
platform, more than one-third of which is sexual material harmful to minors . . . .”Id. § 129B.002. H.B. 1181 requires these companies to “comply with a commercial
age verification system that verifies age using: (A) government-issued
identification; or (B) a commercially reasonable method that relies on public or
private transactional data to verify the age of an individual.” H.B. 1181 §
129B.003. “Transactional data” refers to a “sequence of information that
documents an exchange . . . used for the purpose of satisfying a request or event.
The term includes records from mortgage, education, and employment entities.” Id.
H.B. 1181 does not allow the companies or third-party verifiers to “retain any
identifying information of the individual.” Id. § 129B.002.
In addition to the age verification, H.B. 1181 requires adult content sites topost a “public health warning” about the psychological dangers of pornography. In
14-point font or larger, sites must post:
TEXAS HEALTH AND HUMAN SERVICESWARNING:
Pornography is potentially biologically addictive, isproven to harm human brain development, desensitizes
brain reward circuits, increases conditioned responses, andweakens brain function.
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TEXAS HEALTH AND HUMAN SERVICESWARNING:
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 SERVICESWARNING:
Pornography increases the demand for prostitution, child
exploitation, and child pornography.
Id. § 129B.004.
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 healthhotline, 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 REFERRALTO LOCAL TREATMENT FACILITIES, SUPPORTGROUPS,ANDCOMMUNITYBASEDORGANIZATIONS.
Id.
H.B. 1181 authorizes the Texas Attorney General to bring an action in state
court to enjoin the violation and recover up to $10,000.00 for each day of aviolation, if it is “in the public interest.” Id. § 129B.005. If a minor accesses sexual
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material, the Attorney General may seek an additional amount up to $250,000.00
per violation. Id.
II. LEGAL STANDARDSA.

Preliminary Injunction

A preliminary injunction is an extraordinary remedy, and the decision to
grant such relief is to be treated as the exception rather than the rule. Valley v.
Rapides Par. Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). “A plaintiff seeking apreliminary injunction must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of preliminary relief, that thebalance of equities tips in his favor, and that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking
injunctive relief carries the burden of persuasion on all four requirements. PCITransp. Inc. v. W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005).
III. DISCUSSION – LIKELIHOOD OF SUCCESS ON THE MERITS
Plaintiffs’ motion and Defendant’s response raise four merits issues: (1) do
Plaintiffs have standing to bring suit, (2) is the age verification requirement
unconstitutional, (3) is the health warning unconstitutional, and (4) does Section
230 of the CDA preempt the law? The Court will address each in turn.

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A.

Standing

Plaintiffs have standing to bring suit. To have Article III standing, a plaintiff
must “(1) have suffered an injury in fact, (2) that is fairly traceable to thechallenged action of the defendant, and (3) that will likely be redressed by afavorable decision.” Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020)
as revised (Oct. 30, 2020) (citing Lujan v. Def’s. of Wildlife, 504 U.S. 555, 560–61(1992)). Here, Plaintiffs bring a pre-enforcement challenge to a statute thatthreatens substantial civil penalties. In the context of pre-enforcement challenges,
an injury-in-fact is established when the plaintiff “(1) has an intention to engage ina course of conduct arguably affected with a constitutional interest, (2) his intended
future conduct is arguably proscribed by the policy in question, and (3) the threatof future enforcement of the challenged policies is substantial.” Fenves, 979 F.3d at
330 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)).
i.

Injury in Fact

Plaintiffs’ expression is afforded a constitutional interest. Plaintiffs seek toproduce, distribute, and post legal adult content online, free of overbroad
restrictions and without being compelled to speak about the purported harms ofsexually explicit videos. Jane Doe and members of Free Speech Coalition seek tocontinue performances in adult videos with wide audiences. This conduct isregulated by H.B. 1181, which sets restrictions on when and how adult videos can9Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 10 of 81

be posted. Beyond the restrictions on speech, the law interferes with the Adult
Video Companies’ ability to conduct business, and risks deterring adults fromvisiting the websites. Finally, “the law is aimed directly at plaintiffs, who . . . will
have to take significant and costly compliance measures,” which suffices to show
pre-enforcement injury. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 386,
392 (1988). The compliance costs here are substantial, because commerciallyavailable age verifications services are costly, even prohibitively so. Plaintiffs’
complaint includes several commercial verification services, showing that theycost, at minimum, $40,000.00 per 100,000 verifications.
As to the required disclosures, compelled speech necessarily involves aconstitutional interest. Janus v. Am. Fed’n. of State, Cnty., and Mun. Employees,
Council 31, 138 S. Ct. 2448 (2018) (“When speech is compelled, however,additional damage is done. In that situation, individuals are coerced into betraying
their convictions.”); see also W. Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624, 633 (1943) (noting that a law commanding “involuntary affirmation” ofobjected-to beliefs would require “even more immediate and urgent grounds” thana law demanding silence).
H.B. 1181 imposes substantial liability for violations, including $10,000.00
per day for each violation, and up to $250,000.00 if a minor is shown to haveviewed the adult content. Finally, the threat of future enforcement is substantial—
10Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 11 of 81

the Attorney General has not disavowed enforcement of the law, and there is no
reason to believe that the law will not be enforced against those who violate it.
“[W]hen dealing with pre-enforcement challenges to recently enacted (or, at least,
non-moribund) statutes that facially restrict expressive activity by the class towhich the plaintiff belongs, courts will assume a credible threat of prosecution in
the absence of compelling contrary evidence.” Speech First, 979 F.3d at 335(cleaned up).
Free Speech Coalition has associational standing. An association has
standing to bring claims on behalf of its members when “(1) individual members
would have standing, (2) the association seeks to vindicate interests germane to its
purpose, and (3) neither the claim asserted nor the relief requested requires theindividual members’ participation.” Students for Fair Admissions, Inc. v. Univ. of
Tex. at Austin, 37 F.4th 1078, 1084 (5th Cir. 2022). Free Speech Coalition’s
members would have standing to sue in their own right, as they suffer the same
injuries as the named Adult Video Companies. These interests fall within Free
Speech Coalition’s mission, which is to advocate for the distribution of adultvideos and the First Amendment rights of its performers and producers. See Nat’l
Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 429 (1963)(“[T]he First Amendment also protects vigorous advocacy, certainly of lawful ends,
against governmental intrusion.”).
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Defendant contends that Free Speech Coalition lacks associational standing
because it has not identified one member with individual standing in its motion fora preliminary injunction. (Def.’s Resp., Dkt. # 27, at 5 (citing NAACP v. City ofKyle, 626 F.3d 233, 237 (5th Cir. 2010)). While an association does have to
identify a member with individual standing, it need not do so in the preliminary
injunction motion in addition to the complaint. In Plaintiffs’ complaint, they
identify members of the association, including directors, distributors, and actors.
And in their reply, Plaintiffs identify Paper Street Media, LLC, an Americancompany, as a member. (Boden Decl., Dkt. # 28-5, at 2). NAACP v. City of Kyle
itself examined associational standing based upon the “evidence in the record,” andPlaintiffs likewise identified a member with individual standing in their reply brief.
626 F.3d at 237; see also All. for Hippocratic Med. v. U.S. Food & Drug Admin.,23-10362, 2023 WL 5266026, at *11–14 (5th Cir. Aug. 16, 2023) (discussing
associational standing based in part on declarations made in support of preliminary
injunction).
Beyond their own First Amendment injuries, Plaintiffs have standing fortheir overbreadth challenge. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)(“Litigants, therefore, are permitted to challenge a statute not because their own
rights of free expression are violated, but because of a judicial prediction orassumption that the statute’s very existence may cause others not before the court
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to refrain from constitutionally protected speech or expression.”); Sec. of State of
Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984) (“[W]hen there is adanger of chilling free speech, the concern that constitutional adjudication be
avoided whenever possible may be outweighed by society’s interest in having thestatute challenged.”).
ii.

Foreign Websites have First Amendment Protection for

Domestic Operations
Defendant repeatedly emphasizes that the foreign website Plaintiffs “have novalid constitutional claims” because they reside outside the United States. (Def.’s
Resp., Dkt. # 27, at 6–7). First, it is worth noting that this argument, even if
successful, would not bar the remaining Plaintiffs within the United States frombringing their claims. Several website companies, including Midus Holdings, Inc.,
Neptune Media, LLC, and Paper Street Media, LLC, along with Jane Doe and Free
Speech Coalition (with U.S. member Paper Street Media, LLC), are United States
residents. Defendant, of course, does not contest that these websites and Doe areentitled to assert rights under the U.S. Constitution. Regardless of the foreign
websites, the domestic Plaintiffs have standing.
As to the foreign websites, Defendant cites Agency for Intl. Dev. v. All. forOpen Socy. Intl., Inc., 140 S. Ct. 2082 (2020) (“AOSI”), which reaffirmed theprinciple that “foreign citizens outside U.S. territory do not possess rights under13

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 14 of 81

the U.S. Constitution.” Id. at 2086. AOSI’s denial of standing is distinguishable
from the instant case. That case involved foreign nongovernmental organizations(“NGOs”) that received aid—outside the United States—to distribute outside theUnited States. These NGOs operated abroad and challenged USAID’s ability tocondition aid based on whether an NGO had a policy against prostitution and sex
trafficking. The foreign NGOs had no domestic operations and did not plan toconvey their relevant speech into the United States. Under these circumstances, theSupreme Court held that the foreign NGOs could not claim First Amendment
protection. Id.
AOSI differs from the instant litigation in two critical ways. First, Plaintiffs
do not seek to challenge rule or policymaking with extraterritorial effect, as theforeign plaintiffs did in AOSI. By contrast, the foreign Plaintiffs here seek toexercise their First Amendment rights only as applied to their conduct inside theUnited States and as a preemptive defense to civil prosecution. Indeed, courts havetypically awarded First Amendment protections to foreign companies with
operations in the United States with little thought. See, e.g., Manzari v. AssociatedNewspapers Ltd., 830 F.3d 881 (9th Cir. 2016) (in a case against British
newspaper, noting that defamation claims “are significantly cabined by the First
Amendment”); Mireskandari v. Daily Mail and Gen. Tr. PLC,
CV1202943MMMSSX, 2013 WL 12114762 (C.D. Cal. Oct. 8, 2013) (explicitly
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noting that the First Amendment applied to foreign news organization); Times
Newspapers Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189, 192 (C.D. Cal.
1974) (same); Goldfarb v. Channel One Russia, 18 CIV. 8128 (JPC), 2023 WL
2586142 (S.D.N.Y. Mar. 21, 2023) (applying First Amendment limits on
defamation to Russian television broadcast in United States); Nygård, Inc. v. UusiKerttula, 159 Cal. App. 4th 1027, 1042 (2008) (granting First Amendment
protections to Finnish magazine); United States v. James, 663 F. Supp. 2d 1018,
1020 (W.D. Wash. 2009) (granting foreign media access to court documents under
the First Amendment). It would make little sense to allow Plaintiffs to exercise
Frist Amendment rights as a defense in litigation but deny them the ability to raisea pre-enforcement challenge to imminent civil liability on the same grounds.
Second, unlike the foreign plaintiffs in AOSI, the foreign website Plaintiffs
in the instant case do operate in the United States for all purposes relevant to thislitigation. As regulated by H.B. 1181, their speech and conduct occurs in Texas.
Their pre-enforcement challenge, by definition, requires Plaintiffs to show that therisk of civil prosecution in Texas is concrete and imminent. AOSI itself reaffirmedthat “foreign citizens in the United States may enjoy certain constitutional rights . .
. .” Id. at 2086. To the extent their conduct “operates” in the United States and15

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subjects them to real or imminent liability here, the foreign website Plaintiffs
receive First Amendment protection.2
The constitutional rights of foreign companies operating in the United States
is particularly important in the First Amendment context. “The First Amendment
protects speech for the sake of both the speaker and the recipient.” ThunderStudios, Inc. v. Kazal, 13 F.4th 736, 743–44 (9th Cir. 2021), cert. denied 142 S. Ct.
1674 (2022). “It is now well established that the Constitution protects the right toreceive information and ideas. This right to receive information and ideas,
regardless of their social worth, is fundamental to our free society.” Stanley v.
Georgia, 394 U.S. 557, 564 (1969) (citations omitted); see also Va. State Bd. of

Defendant repeatedly suggests that Plaintiffs should not able to avail themselves of First Amendment
protections when they have not availed themselves of personal jurisdiction in Texas. (Def.’s Resp., Dkt.
#27, at 7, 21). To this end, they rely on a single district court opinion where a foreign plaintiff wasdetermined not to be subject to personal jurisdiction for posting online pornography as related to childsex-trafficking claims. Doe v. WebGroup Czech Republic, No. 221CV02428VAPSKX, 2022 WL 982248(C.D. Cal. Jan. 13, 2022). Although personal jurisdiction is not strictly before us, the Court is skeptical ofthis analysis as applied to H.B. 1181. Unlike child sex-trafficking claims, viewing pornography in a stateis more directly related to the claims that would be brought by the Attorney General under H.B. 1181. See
Luv N’care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (examining, among other things,
whether the plaintiff’s cause of action arises out of or results from the defendant’s forum-related
contacts). And foreign pornography websites have been held subject to U.S. jurisdiction in other contexts.
Hydentra HLP Int. Ltd. v. Sagan Ltd., 783 Fed. Appx. 663 (9th Cir. 2019) (unpublished); George S. May
Intern. Co. v. Xcentric Ventures, LLC, 409 F. Supp. 2d 1052 (N.D. Ill. 2006) (holding out-of-state
defendant subject to personal jurisdiction in similar analysis); AMA Multimedia LLC v. Sagan Ltd., CV16-01269-PHX-DGC, 2016 WL 5946051 (D. Ariz. Oct. 13, 2016). But if there was any doubt, purposefulavailment would likely be established when a website knowingly accepts driver’s license data from a state
resident, transmits that data to the state, and then proceeds to grant that visitor access to the site, as H.B.
1181 requires. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)(examining website interactivity as keystone for personal jurisdiction); see also Johnson v.
TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (noting that courts in the circuit use the
Zippo test). At any rate, it is the threat of enforcement, not the existence of personal jurisdiction, thatwould lead to First Amendment chill.
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Pharmacy, 425 U.S. 748, 756 (1976) (“[W]here a speaker exists, the protection
afforded is to the communication, to its source and to its recipients both.”). To holdotherwise would drastically expand the government’s ability to restrict ideas basedon their content or viewpoint. States could ban, for example, the Guardian or the
Daily Mail based on their viewpoint, because those newspapers are based in the
United Kingdom. Alternatively, those websites could be subject to relaxeddefamation laws without any First Amendment protection. This is not the law, andthe Court does not read AOSI to abrogate First Amendment protection for speechoccurring in the United States and directed at the United States but hosted byforeign entities. See Thunder Studios, Inc., 13 F.4th at 743–44 (extending First
Amendment rights to foreign plaintiff for purposes of civil lawsuit in the UnitedStates); Kleindienst v. Mandel, 408 U.S. 753 (1972) (acknowledging the First
Amendment rights of listeners in the United States but noting that they do not
override discretionary immigration decisions).
iii.

Traceability and Redressability

Plaintiffs’ injuries are traceable to Defendant, and Defendant does notcontest this in her response. (Def.’s Resp., Dkt. # 27). The Texas Attorney Generalis tasked with bringing civil prosecutions under H.B. 1181. Their injuries will be
redressed by an injunction or declaration that the law is unconstitutional. See Natl.
Press Photographers Assn. v. McCraw, 594 F. Supp. 3d 789, 800–01 (W.D. Tex.
17

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 18 of 812022), appeal docketed No. 22-500337 (May 3, 2022) (“[A] declaratory judgment
will have the practical effect of allowing them to exercise their First Amendment
rights by removing the fear of prosecution . . . .”) (citing Utah v. Evans, 536 U.S.
452, 464 (2002)).
B.

Sovereign Immunity

While Plaintiffs raise the issue of sovereign immunity in their preliminary
injunction motion, Defendant does not contest the issue in her response. (Def.’s
Resp., Dkt. # 27). Because the issue is jurisdictional, the Court will briefly address
it. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994). The Eleventh Amendment
typically deprives federal courts of jurisdiction over “suits against a state, a stateagency, or a state official in his official capacity unless that state has waived its
sovereign immunity or Congress has clearly abrogated it.” Moore v. La. Bd. of
Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). Under the Ex
parte Young exception to sovereign immunity, lawsuits may proceed in federal
court when a plaintiff requests prospective relief against state officials in theirofficial capacities for ongoing federal violations. 209 U.S. 123, 159–60 (1908).
“For the [Ex parte Young] exception to apply, the state official, ‘by virtue of his
office,’ must have ‘some connection with the enforcement of the [challenged] act,
or else [the suit] is merely making him a party as a representative of the state, and18

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thereby attempting to make the state a party.’” City of Austin v. Paxton, 943 F.3d
993, 997 (5th Cir. 2019) (quoting Young, 209 U.S. at 157).
Neither a specific grant of enforcement authority nor a history of
enforcement is required to establish a sufficient connection. City of Austin, 943
F.3d 993 at 1001; Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’
Comp., 851 F.3d 507, 519 (5th Cir. 2017). There need be only a “scintilla ofenforcement by the relevant state official” for Ex parte Young to apply. City ofAustin, 943 F.3d at 1002 (quotations omitted). Actual threat of or imminent
enforcement is “not required.” Air Evac, 851 F.3d at 519.
Colmenero is plainly tasked with enforcing H.B. 1181. Section 129B.006
vests the Attorney General with the exclusive authority to bring an action. H.B.
1181 § 129B.006(a) (“If the attorney general believes that an entity is knowingly
violating . . . this chapter[,] the attorney general may bring an action . . . to enjoin
the violation, recover a civil penalty, and obtain other relief the court considers
appropriate.”). Moreover, the attorney general “may recover reasonable andnecessary attorney’s fees and costs incurred in an action under this section.” Id. §129B.006(b)(6).
Once it is clear that the named defendant is proper, the Court conducts a
Verizon “straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.”
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Verizon Maryland, Inc. v. Pub. Serv. Commn. of Maryland, 535 U.S. 635, 645(2002). The complaint meets these requirements. It alleges a violation of theUnited States Constitution through the First, Fifth, and Fourteenth Amendments.
And the complaint further alleges that the law is preempted by Section 230 of the
CDA. The relief is prospective because Plaintiffs seek an injunction prohibiting
future enforcement of the law. Plaintiffs’ relief falls under the Ex parte Young
exception.
C.

The Age Verification Requirement is Subject to Strict Scrutinyi.

Strict Scrutiny Applies

First, the Court must determine which level of scrutiny to apply. H.B. 1181
differentiates between sexual and non-sexual material for minors, so a shortoverview of historical regulations on minors’ access to pornography is helpful. In
1968 in Ginsberg v. State of New York, the Supreme Court upheld a conviction ofa person under a state statute that criminalized knowingly providing obscenematerials “for minors” to minors. 390 U.S. 629, 638 (1968). Because obscenematerials fell outside the scope of First Amendment protection, the Court analyzed
the statute under rational basis scrutiny and upheld the law. Id.
However, beginning in the 1990s, use of the “for minors” language cameunder more skepticism as applied to internet regulations. In Reno v. ACLU, theSupreme Court held parts of the CDA unconstitutional under strict scrutiny. 521
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U.S. 844, 850 (1997). The Court noted that the CDA was a content-based
regulation that extended far beyond obscene materials and into First Amendment
protected speech, especially because the statute contained no exemption forsocially important materials for minors. Id. at 865. The Court noted that accessing
sexual content online requires “affirmative steps” and “some sophistication,”noting that the internet was a unique medium of communication, different fromboth television broadcast and physical sales. Id. at 854. The Court held Ginsberg
distinct on four separate grounds and largely found it inapplicable to digital
regulations like the CDA. Id. at 864–68.
After Reno v. ACLU, the federal government tried again, passing the Child
Online Protection Act (“COPA”), which restricted the ability to post content onlinethat was harmful to minors for commercial purposes. Ashcroft v. ACLU, 535 U.S.
564 (2002); Child Online Protection Act, 47 U.S.C. § 231 (1998). In separate
decisions, the Third Circuit held that the law was similarly unconstitutional understrict scrutiny. Am. Civ. Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003),
aff’d and remanded, 542 U.S. 656 (2004); Am. Civ. Liberties Union v. Mukasey,534 F.3d 181 (3d Cir. 2008), cert denied 555 U.S. 1137 (2009). Most notably, theThird Circuit held COPA subject to strict scrutiny because its “definition ofharmful material is explicitly focused on minors, it automatically impacts nonobscene, sexually suggestive speech that is otherwise protected for adults.” ACLU
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Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 22 of 81v. Ashcroft, 322 F.3d at 252. COPA has remained enjoined since the Third Circuitand Supreme Court’s ACLU decisions.
Just like COPA, H.B. 1181 regulates beyond obscene materials. As a result,
the regulation is based on whether content contains sexual material. Because thelaw restricts access to speech based on the material’s content, it is subject to strict
scrutiny. Id.; Ent. Software Ass’n v. Blagojevich, 469 F.3d 641, 649–50 (7th Cir.
2006) (noting courts have applied strict scrutiny to “a number of statutes . . . that
included the Miller language or some hybrid of Miller and Ginsberg”); ACLU v.
Reno, 521 U.S. at 864–68.
Defendant largely concedes that strict scrutiny applies, (Def.’s Resp., Dkt. #27, at 6, 9), but hopes that H.B. 1181 should “be subject to a lower standard of
judicial scrutiny because it regulates only ‘commercial entities, publication anddistribution of material harmful to minors.” (Id. at 9 (citing Ashcroft v. ACLU, 542
U.S. at 676 (Scalia, J., dissenting))). As Defendant tacitly acknowledges, a district
court is not at liberty to disregard existing Supreme Court precedent in favor of adissenting opinion. Nor is Defendant entitled to contest Plaintiffs’ likelihood of
success based on the possibility that the Supreme Court may revisit its precedent.
This Court cannot reduce the applicable level of scrutiny based on a non-binding,dissenting opinion.

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In a similar vein, Defendant argues that Plaintiffs’ content is “obscene” andtherefore undeserving of First Amendment coverage. (Id. at 6). Again, this isprecedent that the Supreme Court may opt to revisit, but we are bound by thecurrent Miller framework. Miller v. California, 413 U.S. 15, 24 (1973).3 Moreover,even if we were to abandon Miller, the law would still cover First Amendmentprotected speech. H.B. 1181 does not regulate obscene content, it regulates allcontent that is prurient, offensive, and without value to minors. Because mostsexual content is offensive to young minors, the law covers virtually all salacious
material. This includes sexual, but non-pornographic, content posted or created by
Plaintiffs. See (Craveiro-Romão Decl., Dkt. # 28-6, at 2; Seifert Decl., Dkt. # 28-7,
at 2; Andreou Decl., Dkt. # 28-8, at 2). And it includes Plaintiffs’ content that issexually explicit and arousing, but that a jury would not consider “patently
offensive” to adults, using community standards and in the context of online
webpages. (Id.); see also United States v. Williams, 553 U.S. 285, 288 (2008);
Ashcroft v. Free Speech Coal., 535 U.S. 234, 252 (2002). Unlike Ginsberg, theregulation applies regardless of whether the content is being knowingly distributed
to minors. 390 U.S. at 639. Even if the Court accepted that many of Plaintiffs’
videos are obscene to adults—a question of fact typically reserved for juries—the

In particular, Miller requires that patently offensive material be so defined by the applicable state statute.
Id. That cannot be the case here for H.B. 1181, which defines material only with reference to whether it isobscene for minors.
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law would still regulate the substantial portion of Plaintiffs’ content that is not“patently offensive” to adults.4 Because H.B. 1181 targets protected speech,
Plaintiffs can challenge its discrimination against sexual material.
Defendant also suggests that the Court consider H.B. 1181 a “time, place,and manner” restriction. (Def.’s Resp., Dkt. # 27, at 6 (“A law requiring porn sites
to turn away children is no different than one that prohibits a strip club fromoperating next to an elementary school or allowing a 13-year-old to enter.”)).
Again, this seems to be inserted largely for the purposes of Supreme Court review
as the notion is plainly foreclosed by ACLU v. Reno. There, the Supreme Court
held that a law that “applies broadly to the entire universe of cyberspace” andseeks to protect children from offensive speech “is a content-based blanket
restriction on speech, and, as such, cannot be ‘properly analyzed as a form of time,
place, and manner regulation.’” ACLU v. Reno, 521 U.S. at 868 (quoting Renton v.
Playtime Theatres, 475 U.S. 41, 46 (1986)).5 And while Defendant and amici6

See, e.g., United States v. Cary, 775 F.3d 919, 926 (7th Cir. 2015) (“[A]dult pornography, unlike childpornography, generally has First Amendment protection.”); Farrell v. Burke, 449 F.3d 470, 497 (2d Cir.
2006) (“Pornographic materials—at least those that are not obscene—receive full First Amendment
protection when in the possession of ordinary adults . . . .”); United States v. Eaglin, 913 F.3d 88, 99 (2dCir. 2019) (same).
5
It is worth further noting that H.B. 1181 does not operate like the sort of “strip club” restriction that
Defendant analogizes to. It does not just regulate the virtual equivalent of strip clubs or adult DVD stores.
Rather, a more apt analogy would be that H.B. 1181 forces movie theaters to catalog all movies that theyshow, and if at least one-third of those movies are R-rated, H.B. 1181 would require the movie theater toscreen everyone at the main entrance for their 18+ identification, regardless of what movie they wanted tosee. Defendant is fully entitled to seek appellate review and reconsideration of existing precedent. But thelaw is still broader than even those time, place, and manner restrictions.
6(Amicus Br., Dkt. # 29-2).
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argue that H.B. 1181 is akin to a time, place, and manner restriction because of
pornography’s secondary effects, they ignore the well-established precedent that“‘[r]egulations that focus on the direct impact of speech on its audience’ are notproperly analyzed under Renton.” Boos v. Barry, 485 U.S. 312, 321 (1988); seealso ACLU v. Reno, 521 U.S. at 868 (same); Forsyth County v. Nationalist
Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not acontent-neutral basis for regulation.”).
Because the law regulates speech based upon the content therein, including
content deserving of First Amendment protection, it must survive strict scrutiny. To
endure strict scrutiny, H.B. 1181 must: (1) serve a compelling governmental
interest, (2) be narrowly tailored to achieve it, and (3) be the least restrictive meansof advancing it. Sable Commc’ns of Cal., Inc. v. Fed. Commc’ns Comm’n, 492
U.S. 115, 126 (1989).
ii.

H.B. 1181 Nominally Protects a Compelling State Interest

Plaintiffs concede for the purposes of this motion that Defendant’s statedinterest here is compelling. It is uncontested that pornography is generally
inappropriate for children, and the state may regulate a minor’s access topornography. Ginsberg, 390 U.S. at 63. The strength of that interest alone,
however, is not enough for a law to survive strict scrutiny. The state must still show

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that H.B. 1181 is narrowly tailored and the least restrictive means of advancing thatinterest. It fails on both these grounds.
D.

The Statute is not Narrowly Tailoredi.

The law is underinclusive

Although the state defends H.B. 1181 as protecting minors, it is not tailoredto this purpose. Rather, the law is severely underinclusive. When a statute is
dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint
discrimination under false auspices, or at a minimum simply does not serve its
purported purpose. See City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994).
H.B. 1181 will regulate adult video companies that post sexual material totheir website. But it will do little else to prevent children from accessing
pornography. Search engines, for example, do not need to implement age
verification, even when they are aware that someone is using their services to view
pornography. H.B. 1181 § 129B.005(b). Defendant argues that the Act still protects
children because they will be directed to links that require age verification. (Def.’s
Resp., Dkt. # 27, at 12). This argument ignores visual search, much of which issexually explicit or pornographic, and can be extracted from Plaintiffs’ websites
regardless of age verification. (Sonnier Decl., Dkt. # 31-1, at 1–2). Defendant’s
own expert suggests that exposure to online pornography often begins with
“misspelled searches[.]” (Dines Decl., Dkt. # 27-1, at 2).
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Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 27 of 81

Even more problematic is that H.B. 1181 applies only to the subset of
pornographic websites that are subject to personal jurisdiction in Texas. Indeed,
Defendant implicitly concedes this when they argue that the foreign Adult Video
Company Plaintiffs are not subject to jurisdiction in the United States. If foreign
websites are not subject to personal jurisdiction in Texas, then H.B. 1181 will haveno valid enforcement mechanism against those websites, leaving minors able toaccess any pornography as long as it is hosted by foreign websites with no ties tothe United States.
In addition, social media companies are de facto exempted, because they
likely do not distribute at least one-third sexual material. This means that certainsocial media sites, such as Reddit, can maintain entire communities and forums(i.e., subreddits), dedicated to posting online pornography with no regulation under
H.B. 1181. (Sonnier Decl., Dkt. # 31-1, at 5). The same is true for blogs posted toTumblr, including subdomains that only display sexually explicit content. (Id.)
Likewise, Instagram and Facebook pages can show material which is sexually
explicit for minors without compelled age verification. (Cole Decl., Dkt. # 5-1, at
37–40). The problem, in short, is that the law targets websites as a whole, rather
than at the level of the individual page or subdomain. The result is that the law will
likely have a greatly diminished effect because it fails to reduce the online

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pornography that is most readily available to minors. (Id. at 36–38; Dines Decl.,
Dkt. # 27-1, at 2).
The compelled disclosures are especially underinclusive. H.B. 1181’s healthwarnings apply to websites with one-third sexual material, but these websites will
already screen out minors through age verification. By contrast, websites with lessthan one-third sexual material do not need to post any warning at all, even though
they have no age verification requirement. The result is that a health disclaimer,
ostensibly designed for minors, will be seen by adults visiting Pornhub, but not byminors visiting pornographic subreddits.
In sum, the law is severely underinclusive. It nominally attempts to prevent
minors’ access to pornography, but contains substantial exemptions, including
material most likely to serve as a gateway to pornography use. Williams-Yulee v.
Fla. Bar, 575 U.S. 433, 448–49 (2015) (“[U]nderinclusiveness can raise doubts
about whether the government is in fact pursuing the interest it invokes, rather thandisfavoring a particular speaker or viewpoint . . . .”); Brown v. Ent. Merchants
Ass’n, 564 U.S. 786, 802 (2011) (“[The] regulation is wildly underinclusive whenjudged against its asserted justification, which in our view is alone enough to
defeat it . . . .”). The Court need not determine whether the under-inclusiveness is
independently fatal at this stage. Rather, it is one of many elements of H.B. 1181
that show the law is not narrowly tailored.
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Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 29 of 81ii.

The statute’s sweep is unclear

The statute’s tailoring is also problematic because of several key ambiguities
in H.B. 1181’s language. Although the Court declines to rest its holding on avagueness challenge, those vagueness issues still speak to the statute’s broad
tailoring. First, the law is problematic because it refers to “minors” as a broad
category, but material that is patently offensive to young minors is not necessarily
offensive to 17-year-olds. As previously stated, H.B. 1181 lifts its language fromthe Supreme Court’s holdings in Ginsberg and Miller, which remains the test for
obscenity. H.B. 1181 § 129B.001; Miller, 413 U.S. at 24; Ginsberg, 390 U.S. at
633. As the Third Circuit held, “The type of material that might be consideredharmful to a younger minor is vastly different—and encompasses a much greater
universe of speech—than material that is harmful to a minor just shy of seventeen
years old. . . .” ACLU v. Ashcroft, 322 F.3d at 268.7 H.B. 1181 provides noguidance as to what age group should be considered for “patently offensive”
material. Nor does the statute define when material may have educational, cultural,or scientific value “for minors,” which will likewise vary greatly between 5-yearolds and 17-year-olds.

H.B. 1181 is even more problematic than COPA, because it defines “minor” as all individuals under 18,
while COPA set the limit at 17. See ACLU v. Reno, 521 U.S. at 865–66 (noting that CDA wasproblematic because it defined minors to include 17-year-olds).
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The result of this language as applied to online webpages is that
constitutionally protected speech will be chilled. A website dedicated to sex
education for high school seniors, for example, may have to implement age
verification measures because that material is “patently offensive” to young minors
and lacks educational value for young minors. Websites for prurient R-rated
movies, which likewise are inappropriate and lacking artistic value for minors
under the age of 17, would need to implement age verification (and more strangely,
warn visitors about the dangers of pornography).
Second, H.B. 1181 is subject to multiple interpretations as to the scope of its
liability. H.B. 1181 limits its coverage to a “commercial entity that knowingly andintentionally publishes or distributes material on an Internet website, including asocial media platform, more than one-third of which is sexual material harmful tominors.” H.B. 1181 § 129B.002(a). But it is unclear whether “one-third” modifies“material” or “website.” Does “material” refer to all content posted on a site, ordoes it apply to any single piece of content? By example, if a small fraction ofYouTube’s videos contain sexual material, does it need to verify user’s ages with
the State? The law’s text is vague on this point, but risks enormous financial harm,
including fines up to $250,000 per violation if Defendant opts for the broader

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interpretation.8 And the law offers no guidance as to how to calculate the “onethird”—whether it be the number of files, total length, or size.
Third, H.B. 1181 similarly fails to define proper age verification with
sufficient meaning. The law requires sites to use “any commercially reasonable
method that relies on public or private transactional data” but fails to define what“commercially reasonable” means. Id. § 129B.03(b)(2)(B). “Digital verification” isdefined as “information stored on a digital network that may be accessed by acommercial entity and that serves as proof of the identify of an individual.” Id. §129B.003(a). As Plaintiffs argue, this definition is circular. In effect, the law
defines “identity verification” as information that can verify an identity. Likewise,
the law requires “14-point font,” but text size on webpages is typically measuredby pixels, not points. See Erik D. Kennedy, The Responsive Website Font Size
Guidelines, Learn UI Design Blog (Aug. 7, 2021) (describing font sizes by pixels)(Dkt. # 5-1 at 52–58). Overall, because the Court finds the law unconstitutional onother grounds, it does not reach a determination on the vagueness question. But the
failure to define key terms in a comprehensible way in the digital age speaks to theThis interpretation is problematic because it is severely underinclusive. If the Attorney General adopts
the narrower definition, then a website could quite easily evade the law by simply adding non-sexualmaterial up to the point that it constitutes at least two-thirds of the site. Indeed, the cost of hosting
additional content may be much lower than the costs of age verification and compelled speech. See(Compl., Dkt. # 1, at 24 (raising the possibility that “a link to all the anodyne content in the local public
library” could circumvent the law)). And at that point, the law would effectively become moot, doing
little to regulate adult video companies beyond forcing them to host non-sexual materials. If the Attorney
General opts for the broader interpretation, then the law encounters other grave challenges by sweeping
far beyond its purported effects.
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lack of care to ensure that this law is narrowly tailored. See Reno, 521 U.S. at 870(“Regardless of whether the CDA is so vague that it violates the Fifth Amendment,
the many ambiguities concerning the scope of its coverage render it problematicfor purposes of the First Amendment.”).
iii.

The law is overbroad, even under narrow constructions

Even if the Court were to adopt narrow constructions of the statute, it would
overburden the protected speech of both sexual websites and their visitors. Indeed,
Courts have routinely struck down restrictions on sexual content as improperly
tailored when they impermissibly restrict adult’s access to sexual materials in thename of protecting minors. See, e.g., Ex Parte Lo, 424 S.W.3d 10, 23 (Tex. Crim.
App. 2013) (striking down restrictions on “grooming” as overbroad and not
narrowly tailored); Garden Dist. Book Shop, Inc. v. Stewart, 184 F. Supp. 3d 331,
338–40 (M.D. La. 2016) (striking down law that criminalized publication of“material harmful to minors” under strict scrutiny); Am. Booksellers Found. forFree Expression v. Sullivan, 799 F. Supp. 2d 1078 (D. Alaska 2011) (striking down
law that restricted dissemination of material depicting sexual activity under strict
scrutiny); ACLU v. Johnson, 194 F.3d 1149, 1158–60 (10th Cir. 1999)(distinguishing Ginsberg and following Reno to find a statute criminalizing
dissemination of material harmful to minors was overbroad); PSINet, Inc. v.
Chapman, 362 F.3d 227, 234–36 (4th Cir. 2004) (same).
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Plaintiffs are likely to succeed on their overbreadth and narrow tailoring
challenge because H.B. 1181 contains provisions largely identical to those twice
deemed unconstitutional in COPA. See ACLU v. Ashcroft, 322 F.3d 240 (3d Cir.
2003), aff’d and remanded, 542 U.S. 656 (2004); ACLU v. Mukasey, 534 F.3d 181(3d Cir. 2008), cert denied 555 U.S. 1137 (2009).9 COPA defined material“harmful to minors” as:(A) the average person, applying contemporarycommunity standards, would find, taking the material as awhole and with respect to minors, is designed to appeal to,or is designed to pander to, the prurient interest; (B)depicts, describes, or represents, in a manner patently
offensive with respect to minors, an actual or simulated
sexual act or sexual contact, an actual or simulated normal
or perverted sexual act, or a lewd exhibition of the genitals
or post-pubescent female breast; and (C) taken as a whole,lacks serious literary, artistic, political, or scientific value
for minors.
ACLU v. Mukasey, 534 F.3d at 191 (citing 47 U.S.C. § 231(e)(6)).
By comparison, H.B. 1181 defines material “harmful to minors” as:(A) the average person, applying contemporarycommunity standards, would find, taking the material as awhole and with respect to minors, is designed to appeal toor pander to the prurient interest; (B) in a manner patently
The Supreme Court’s affirmance of the Third Circuit’s decision in ACLU v. Ashcroft focused on thetype of restriction used, not whether the law was narrowly tailored. See Ashcroft v. ACLU, 542 U.S. at
665 (“[W]e decline to consider the correctness of the other arguments relied on by the Court ofAppeals.”). However, upon remand, the Third Circuit again held that the law was not narrowly tailored ina final decision on the merits. ACLU v. Mukasey, 534 F.3d at 197–98 (“[W]e are quite certain that . . . theGovernment has not met its burden of showing that [the law] is narrowly tailored so as to survive strict
scrutiny analysis and thereby permit us to hold it constitutional.”). The Supreme Court declined a petition
for writ of certiorari as to the nationwide permanent injunction. Accordingly, while the ACLU discussionof narrow tailoring is not strictly binding authority, the Court affords it substantial weight.
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offensive with respect to minors, exploits, is devoted to, or
principally consists of descriptions of actual, simulated, or
animated display or depiction of: (i) a person's pubic hair,anus, or genitals or the nipple of the female breast; (ii)touching, caressing, or fondling of nipples, breasts,
buttocks, anuses, or genitals; or (iii) sexual intercourse,
masturbation, sodomy, bestiality, oral copulation,
flagellation, excretory functions, exhibitions, or any othersexual act; and (C) taken as a whole, lacks serious literary,artistic, political, or scientific value for minors.
H.B. 1181 § 129B(6)(B).
The statutes are identical, save for Texas’s inclusion of specific sexual
offenses. Unsurprisingly, then, H.B. 1181 runs into the same narrow tailoring andoverbreadth issues as COPA. In particular, the use of “for minors” and “withrespect to minors” has been held overbroad in the context of internet speech. As
ACLU v. Ashcroft held:
The term “minor,” as Congress has drafted it, thus applies
in a literal sense to an infant, a five-year old, or a person
just shy of age seventeen. In abiding by this definition,
Web publishers who seek to determine whether their Web
sites will run afoul of COPA cannot tell which of these“minors” should be considered in deciding the particular
content of their Internet postings. Instead, they must guessat which minor should be considered in determining
whether the content of their Web site has “serious ... value
for [those] minors.” 47 U.S.C. § 231(e)(6)(C). Likewise,
if they try to comply with COPA’s “harmful to minors”
definition, they must guess at the potential audience ofminors and their ages so that the publishers can refrainfrom posting material that will trigger the prurient interest,or be patently offensive with respect to those minors who
may be deemed to have such interests.
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322 F.3d at 254.
Despite this decades-long precedent, Texas includes the exact same drafting
language previously held unconstitutional. H.B. 1181 only exempts sexual material
that “taken as a whole, lacks serious literary, artistic, political, or scientific value
for minors.” H.B. 1181 § 129B.001(6)(C). Material that is sexual will likely satisfy
H.B. 1181’s test, because it is inappropriate for minors, even though it is not
obscene for adults. Any prurient material risks being regulated, because it will
likely be offensive to minors and lack artistic or scientific value to them. Although
this may be permissible when someone knowingly sells material to a minor, suchas in Ginsberg, it is constitutionally problematic applied to online speech, where
the speech is necessarily broadcast widely. See ACLU v. Ashcroft, 535 U.S. at 568;
Am. Booksellers Found. for Free Expression v. Sullivan, 799 F. Supp. 2d 1078,
1082 (D. Al. 2011) (noting an online statute is “dramatically different” fromanother statute that “applies only to personally directed communication between an
adult and a person that the adult knows or should know is a minor.”); Ent. Software
Ass’n, 469 F.3d at 649–50 (noting that “a number of statutes have been foundunconstitutional that included the Miller language or some hybrid of Miller andGinsberg” in the context of restrictions on material for minors).
Defendant argues that its language is permissible because the Supreme Court
in Sable allowed the government to protect minors from non-obscene material.
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Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 36 of 81(Def.’s Resp., Dkt. # 27, at 17 (citing Sable Commun. of California, Inc., 492 U.S.
at 126)). Defendant stretches the holding of Sable too far. While Sable upheld thegovernment’s interest in “shielding minors from the influence of literature that is
not obscene by adult standards,” it still noted that those restrictions must survive
strict scrutiny. Sable, 492 U.S. at 126. Nothing in Sable or Defendant’s response
differentiates this analysis or restricts the broad scope of H.B. 1181. Moreover, in
the ACLU decisions, the Third Circuit found that the addition of “for minors” wasconstitutionally problematic because it chills substantial speech for adults based onwhether it is inappropriate for minors. 322 F.3d at 266–71; 534 F.3d at 190–93,
205–07. And the Supreme Court reaffirmed in Reno v. ACLU that the government
may not “reduce the adult population to only what is fit for children.” 521 U.S. 875(cleaned up) (quoting Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U.S. 727, 759 (1996)).
Accordingly, the ACLU decisions control here. The law sweeps far beyond
obscene material and includes all content offensive to minors, while failing toexempt material that has cultural, scientific, or educational value to adults only. At
the same time, the law allows other websites to show and display explicit material,

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as long as they have two-thirds non-obscene content. The result is that H.B. 1181’s
age verification is not narrowly tailored and fails strict scrutiny.10
E.

H.B. 1181 is Overly Restrictive

To endure strict scrutiny, a statute must employ the least restrictive means ofprotecting minors. Reno, 521 U.S. at 874 (“That burden on adult speech is
unacceptable if less restrictive alternatives would be at least as effective inachieving the legitimate purpose that the statute was enacted to serve.”). The
government bears the burden to show that less restrictive means would not be aseffective. Ashcroft v. ACLU, 542 U.S. at 669. Again, because H.B. 1181
substantially restricts adults’ protected speech, it is not sufficiently tailored.
Nonetheless, the Court also finds that the age verification enforcement mechanism
is overly restrictive.
i.

Compelled verification chills protected speech

Like the narrow tailoring, this issue has been addressed by the Third Circuitand Supreme Court regarding COPA. In particular, whereas the Supreme Court did

Plaintiffs also ask the Court to hold that H.B. 1181 is unconstitutionally overbroad. In general, “[t]heoverbreadth doctrine is strong medicine” that should be employed “only as a last resort.” Los Angeles
Police Dept. v. United Reporting Pub. Corp., 528 U.S. 32, 39 (1999). Plaintiffs have standing to challenge
H.B. 1181 under strict scrutiny. The law is unconstitutional as it regulates Plaintiffs’ websites because it
discriminates broadly and uses restrictive means to do so. Plaintiffs’ websites are the target of the H.B.
1181, which cannot constitutionally regulate their sites. It necessarily follows, then, that “a substantial
number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010); Richard H. Fallon, Jr., As-Applied and Facial
Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1344–48. (2000) (suggesting that certain
doctrinal tests logically lead to the conclusion that a statute is facially invalid). It is the structure of thelaw, and not its application to any particular Plaintiff, that renders it unconstitutional.
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not discuss COPA’s overbreadth, its did discuss less restrictive means, making it
binding precedent. Id. at 666–73. As the district court found, and the Supreme
Court affirmed, “Blocking and filtering software is an alternative that is lessrestrictive than COPA, and, in addition, likely more effective as a means ofrestricting children’s access to materials harmful to them.” Id. The Court
elaborated that filtering software is less restrictive because “adults without children
may gain access to speech they have a right to see without having to identify
themselves or provide their credit card information. Even adults with children may
obtain access to the same speech on the same terms simply by turning off the filteron their home computers.” Id. at 667.
Defendant argues that Ashcroft v. ACLU’s analysis no longer applies
because it was based on the evidentiary record made by the district court in 1999,
which is not applicable to the instant case and of limited relevance to modern
internet usage. (Def.’s Resp., Dkt. # 27, at 8–12). As Defendant argues, H.B. 1181
uses more secure information, requires companies to delete their data, and isdesigned for convenience and privacy protection. (Id. at 11). The Court does not
dispute that online interactions have changed since the Supreme Court’s decisions
in 1997 and 2004. See Reno v. ACLU, 521 U.S.; Ashcroft v. ACLU, 542 U.S. But
as determined by the facts on the record and presented at the hearing, age
verification laws remain overly restrictive. Despite changes to the internet in the38

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 39 of 81

past two decades, the Court comes to the same conclusion regarding the efficacy
and intrusiveness of age verification as the ACLU courts did in the early 2000s.
First, the restriction is constitutionally problematic because it deters adults’
access to legal sexually explicit material, far beyond the interest of protecting
minors. The Third Circuit’s holding regarding COPA applies equally to H.B. 1181:“[The law] will likely deter many adults from accessing
restricted content because they are unwilling to provide
identification information in order to gain access tocontent, especially where the information they wish toaccess is sensitive or controversial. People may fear totransmit their personal information, and may also fear that
their personal, identifying information will be collected
and stored in the records of various Web sites or providersof adult identification numbers.”
ACLU v. Ashcroft, 322 F.3d at 259.11
Indeed, as the Third Circuit noted, the “Supreme Court has disapproved ofcontent-based restrictions that require recipients to identify themselvesaffirmatively before being granted access to disfavored speech . . . .” Id. (collecting
cases). The same is true here—adults must affirmatively identify themselves before
accessing controversial material, chilling them from accessing that speech.
Whatever changes have been made to the internet since 2004, these privacy
concerns have not gone away, and indeed have amplified.

If anything, the language from ACLU v. Ashcroft is more relevant to today than it was when it was
written, given the ubiquity of modern technology.
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Privacy is an especially important concern under H.B. 1181, because thegovernment is not required to delete data regarding access, and one of the two
permissible mechanisms of age-verification is through government ID. People will
be particularly concerned about accessing controversial speech when the state
government can log and track that access. By verifying information throughgovernment identification, the law will allow the government to peer into the mostintimate and personal aspects of people’s lives. It runs the risk that the state canmonitor when an adult views sexually explicit materials and what kind of websites
they visit. In effect, the law risks forcing individuals to divulge specific details of
their sexuality to the state government to gain access to certain speech. Such
restrictions have a substantial chilling effect. See Denver Area Educ. Telecomm.
Consortium, Inc., 518 U.S. at 754 (“[T]he written notice requirement will further
restrict viewing by subscribers who fear for their reputations should the operator,
advertently or inadvertently, disclose the list of those who wish to watch thepatently offensive channel.”).
The deterrence is particularly acute because access to sexual material canreveal intimate desires and preferences. No more than two decades ago, Texas
sought to criminalize two men seeking to have sex in the privacy of a bedroom.
Lawrence v. Texas, 539 U.S. 558 (2003). To this date, Texas has not repealed its

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Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 41 of 81

law criminalizing sodomy. 12 Given Texas’s ongoing criminalization of homosexualintercourse, it is apparent that people who wish to view homosexual material will
be profoundly chilled from doing so if they must first affirmatively identify
themselves to the state.13
Defendant contests this, arguing that the chilling effect will be limited byage verification’s ease and deletion of information. This argument, however,assumes that consumers will (1) know that their data is required to be deleted and(2) trust that companies will actually delete it. Both premises are dubious, and so
the speech will be chilled whether or not the deletion occurs. In short, it is thedeterrence that creates the injury, not the actual retention. Moreover, while thecommercial entities (e.g., Plaintiffs) are required to delete the data, that is not true
for the data in transmission. In short, any intermediary between the commercial
websites and the third-party verifiers will not be required to delete the identifying
data.
Even beyond the capacity for state monitoring, the First Amendment injury
is exacerbated by the risk of inadvertent disclosures, leaks, or hacks. Indeed, theState of Louisiana passed a highly similar bill to H.B. 1181 shortly before a vendor

The attorney general has explicitly taken the position that state laws remain in place even when held
unconstitutional. Fund Texas Choice v. Paxton, 1:22-CV-859-RP (W.D. Tex. filed Aug. 24, 2022) (Def.’s
Resp., Dkt. # 33, at 28 (citing Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017)).
13
See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976)(“[T]he protection afforded [by the First Amendment] is to the communication, to its source and to its
recipients both.”).
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for its Office of Motor Vehicles was breached by a cyberattack. In a related
challenge to a similar law, Louisiana argues that age-verification users were not
identified, but this misses the point. See Free Speech Coalition v. Leblanc, No.
2:23-cv-2123 (E.D. La. filed June 20, 2023) (Defs.’ Resp., Dkt. # 18, at 10). The
First Amendment injury does not just occur if the Texas or Louisiana DMV (or athird-party site) is breached. Rather, the injury occurs because individuals know the
information is at risk. Private information, including online sexual activity, can beparticularly valuable because users may be more willing to pay to keep that
information private, compared to other identifying information. (Compl. Dkt. # 1,
at 17); Kim Zetter, Hackers Finally Post Stolen Ashley Madison Data, Wired, Aug.
18, 2015, https://www.wired.com/2015/08/happened-hackers-posted-stolen-ashleymadison-data (discussing Ashley Madison data breach and hackers’ threat to“release all customer records, including profiles with all the customers’ secretsexual fantasies and matching credit card transactions, real names and addresses.”).
It is the threat of a leak that causes the First Amendment injury, regardless ofwhether a leak ends up occurring.
In short, while the internet has changed since 2004, privacy concerns havenot. Defendant offers its digital verification as more secure and convenient than theones struck down in COPA and the CDA. This simply does not match the evidence
and declarations supported in the parties’ briefing. Users today are more cognizant
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of privacy concerns, data breaches have become more high-profile, and data
related to users’ sexual activity is more likely to be targeted. (Sonnier Decl., Dkt.
#5-2, at 44–56; Allen Decl., Dkt. # 27-4, at 4–5). The risks of compelled digital
verification are just as large, if not greater, than those in ACLU v. Ashcroft. 322
F.3d at 259.
ii.

Less restrictive alternatives are available

Plaintiffs offer several alternatives that would target minor’s access topornography with fewer burdens on adults’ access to protected sexually explicit
materials. First, the government could use internet service providers, or ISPs, toblock adult content until the adults opt-out of the block. This prevents the repeatedsubmission of identifying information to a third party, and operating at a higher
level, would not need to reveal the specific websites visited. If implemented on a
device-level, sexual information would be allowed for adults’ devices but not forchildren when connected to home internet.
In addition, Plaintiffs propose adult controls on children’s devices, many ofwhich already exist and can be readily set up. This “content filtering” is effectively
the modern version of “blocking and filtering software” that the Supreme Court
proposed as a viable alternative in Ashcroft v. ACLU. 542 U.S. at 666–73.
Blocking and filtering software is less restrictive because adults may accessinformation without having to identify themselves. And the Court agreed with the43Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 44 of 81

finding that “filters are more effective than age-verification requirements.” Id. at667. Nor is this cabined to the early 2000s—a 2016 district court in Louisiana
likewise expressed a preference for blocking and filtering over age verification.
Garden Dist. Book Shop, Inc., 184 F. Supp. 3d at 339.
(a) Defendant’s expert highlights alternatives that H.B. 1181
does not allow
Defendant’s own expert shows how H.B. 1181 is unreasonably intrusive in
its use of age verification. Tony Allen, a digital technology expert who submitted adeclaration on behalf of Defendant, suggests several ways that age-verification canbe less restrictive and costly than other measures. (Allen Decl., Dkt. # 26-6). For
example, he notes that age verification can be easy because websites can track if
someone is already verified, so that they do not have to constantly proveverification when someone visits the page. But H.B. 1181 contains no suchexception, and on its face, appears to require age verification for each visit. H.B.
1181 § 129B.003. Commercial age verification systems must use “public or privatetransactional data” which by its definition includes “records from mortgage,education, and employment entities” but does include third-party verification. Id. §129B.001. The same goes for Allen’s discussion of “vouching”—where age isverified based on others’ credibility. (Allen Decl., Dkt. # 26-6, at 12). H.B. 1181

44

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does not appear to allow for vouching because it is not based on transactional data.
H.B. 1181 § 129B.003.
Similarly, Allen discusses how websites may check age using age estimation
based on a user’s voice or face. (Allen Decl., Dkt. # 26-6, at 8, 10–12). But it is notclear that “transactional” data includes biometric verification. H.B. 1181 §
129B.003. Allen also suggests digital identity apps can make the process easier, butthen acknowledges that “Texas does not yet have a state issued digital
identification card or app.” (Id. at 9). In short, Allen identifies multiple ways thatage verification can be less intrusive on users and websites. But H.B. 1181 does notallow these methods.
(b) Defendant’s scientific research emphasizes the benefits ofparental-led content filtering
Beyond Defendant’s technical expert, one of their medical surveys alsosuggests that content filtering can be effective compared to legal bans. The
position, taken from a literature review of medical research on children’s access toonline sexual material, is worth quoting at length:
In order to contain the risk of inadvertent exposure forchildren, some technical measures may be adopted by
websites, social networks, Internet search engines andInternet providers. Most search engines offer options forsafe browsing and are able to block pop-up ads, which
are one of the most prominent causes of unintended
exposition to age-inappropriate content. However,many authors agree that despite the existence of legal
45

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 46 of 81bans for minors’ use of adult sites and theimplementation of these measures, it is concretely
extremely difficult to block access. Although the web isindeed the major source of pornographic material, theproblem can hardly be solved by simply adopting
technical limitations. Instead, its deep social roots stressthe importance of education and communication withparents, teachers and healthcare professionals.
The literature divides strategies of parental approach inmainly two categories: restrictive mediation and active
mediation. Restrictive mediation mostly consists ofdefining rules about the use of Internet in terms of timing,
setting and type of online activity, and possibly making
use of the aforementioned technical aids. Active
mediation, on the contrary, requires a sharper awarenessfrom parents who qualify themselves as promoters of asafe and responsible use of Internet. This kind of
mediation seems to be favoured by Italian parents (56%)
and mostly chosen when dealing with younger boys andgirls. These mediation strategies have been shown theireffectiveness in contrasting the use of [sexually explicit
material], and many studies confirm that carefulparental control and supervision remain key protective
factors.
(Def.’s Resp., Dkt. # 27-2, at 9–10 (citing Niccolò Principi, et al., Consumption ofsexually explicit internet material and its effects on minors’ health: latest evidence
from the literature,74 Minerva Pediatr., 332 (June 2022) (“Principi Article”)(internal citations omitted) (emphasis added)).
In short, Defendant’s own study suggests several ways that H.B. 1181 isflawed. As the study points out, pop-up ads, not pornographic websites, are themost common forms of sexual material encountered by adolescents. The study also46

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 47 of 81

confirms that blocking pornographic websites and material altogether is extremely
difficult to accomplish through “legal bans.” And most crucially, the study
highlights the importance of content filtering alongside parental intervention as themost effective method of limiting any harm to minors. Defendant cannot claim thatage-verification is narrowly tailored when one of their own key studies suggeststhat parental-led content-filtering is a more effective alternative.
(c) Content filtering is more tailored to sexual material than age
verification
Content-filtering also helps address the under-inclusivity issue. At thehearing, Defendant argued that if H.B. 1181 covered more websites, such as searchengines, then Plaintiffs would instead argue that it is overbroad. The point is welltaken, but it misses a crucial aspect: the law would be overbroad because age
verification is a broad method of enforcement. Under H.B. 1181, age verification
works by requiring a user’s age at a website’s landing page. This forces Texas (andother states) to choose some broad threshold (e.g., one-third) for what percentage
of a website must be sexual before requiring age verification. But this is not true
for content filtering, which applies to the material on a webpage, not just the site asa whole. So users can browse Reddit, but will be screened from the sexual material
within the site by the content filter. (Sonnier Decl., Dkt. # 31-1, at 3–4). Similarly,
a user can search Google, but not encounter pornographic images. (Id.) This is the47Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 48 of 81

definition of tailoring: content filtering, as opposed to age verification, can more
precisely screen out sexual content for minors without limiting access to otherspeech.
Content filtering is especially tailored because parents can choose the levelof access. In other words, parents with an 8-year-old can filter out content
inappropriate for an 8-year-old, while parents with a 17-year-old can filter out
content inappropriate for a 17-year-old. Using age verification, a 17-year-old will
be denied access to material simply because it might be inappropriate for a young
minor. Content filtering, by contrast, allows for much more precise restrictions
within age groups.
In general, content filtering also comports with the notion that parents, notthe government, should make key decisions on how to raise their children. See
United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 824–25 (2000) (“A court
should not assume a plausible, less restrictive alternative would be ineffective; anda court should not presume parents, given full information, will fail to act.”).
Likewise, even as it upheld obscenity laws, Ginsberg affirmed that “constitutional
interpretation has consistently recognized that the parents’ claim to authority intheir own household to direct the rearing of their children is basic in the structureof our society.” 390 U.S. at 639.

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Content filtering allows parents to determine the level of access that theirchildren should have, and it encourages those parents to have discussions with theirchildren regarding safe online browsing. As the Principi article notes, it is thiscombination that is most effective for preventing unwanted exposure to online
pornography. (Principi article, Dkt. # 27-2, at 9–10). Age verification, by contrast,
places little to no control in the hands of parents and caretakers.14 Thus, content
filtering keeps the “parents’ claim to authority in their own household to direct therearing of their children . . . .” Id.: see also Brown, 564 U.S. at 832–35 (2011)(detailing the Founding Era’s attitudes towards raising children and noting that the“history clearly shows a founding generation that believed parents to havecomplete authority over their minor children and expected parents to direct thedevelopment of those children.”) (Thomas, J., dissenting).
(d) Content filtering is less burdensome and more effective
Again, changes to the internet since 2003 have made age verification
more—not less—cumbersome than alternatives. Parental controls arecommonplace on devices. They require little effort to set up and are far lessrestrictive because they do not target adults’ devices.

Parents may only allow access through age verification by providing their ID or credentials to a minor.
This is unlikely in light of the obvious awkwardness of a teenager asking their parents’ permission eachtime they wish to view sexual content.
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Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 50 of 81

Moreover, content filtering is likely to be more effective because it willplace a more comprehensive ban on pornography compared to geography-based
age restrictions, which can be circumvented through a virtual private network(“VPN”) or a browser using Tor. Adult controls, by contrast, typically prevent
VPNs (or Tor-capable browsers) from being installed on devices in the first place.
(See Sonnier Decl., Dkt. # 31-1, at 3–4). And minors who wish to accesspornography are more likely to know how to use Tor or VPNs. (Sonnier Decl., Dkt.
# 5-1, at 45).
In addition, content filtering blocks out pornography from foreign websites,
while age verification is only effective as far as the state’s jurisdiction can reach.
This is particularly troublesome for Texas because, based on the parties here alone,
foreign websites constitute some of the largest online pornographic websites
globally. If they are not subject to personal jurisdiction in the state, they will haveno legal obligation to comply with the H.B. 1181. Age verification is thus limited
to Texas’s jurisdictional reach. Content filtering, by contrast, works at the device
level and does not depend on any material’s country of origin.
Defendant disputes the effects of content filtering and argues that it is only
as effective as the caretakers’ ability to implement it. But even as Defendant’s
technical expert noted at the hearing, content filtering is designed for parents andcaretakers to be easy to use in a family. The technical knowledge required to50

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implement content-filtering is quite basic, and usually requires only a few steps.
(Sonnier Decl., Dkt. # 31-1, at 3–4; Dkt. # 5-2, at 15–17). And the legislature madeno findings regarding difficulty of use when it passed the law.
At the hearing, Defendant’s expert repeatedly emphasized that parents often
fail to implement parental controls on minors’ devices. But Defendant has notpointed to any measures Texas has taken to educate parents about content filtering.
And more problematically, the argument disregards the steps Texas could take toensure content filtering’s use, including incentives for its use or civil penalties forparents or caretakers who refuse to implement the tool. Indeed, draft bills of H.B.
1181 included such a measure, but it was abandoned without discussion. (Pls.’
Reply, Dkt. # 31, at 7). In Ashcroft v. ACLU, the Supreme Court gave this precise
argument “little weight,” noting that the government has ample means ofencouraging content filtering’s use. 542 U.S. at 669–70. In short, Texas cannot
show that content filtering would be ineffective when it has detailed no efforts topromote its use.
(e) Texas has not met its burden
In sum, Plaintiffs have shown that content filtering offers a more tailored,
less restrictive method of ensuring that minors do not access adult sexual content.
This finding is not surprising, because Defendant offers zero evidence that thelegislature even considered the law’s tailoring or made any effort whatsoever to51

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choose the least-restrictive measure. To satisfy strict scrutiny, Texas must provide
evidence supporting the Legislature’s judgments. See Turner Broad. Sys., Inc. v.
F.C.C., 520 U.S. 180, 195–96 (1997). This is Texas’s burden to meet—not
Plaintiffs’. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015). But it isvirtually impossible for Texas to make this showing when the Legislature did notconsider the issue at all. See, e.g., Ass’n of Club Executives of Dallas, Inc. v. Cityof Dallas, Texas, 604 F. Supp. 3d 414, 426 (N.D. Tex. 2022) (“[N]o evidence waspresented that the City considered less restrictive means of achieving its statedinterest”); Brewer v. City of Albuquerque, 18 F.4th 1205, 1255 (10th Cir. 2021)(“[W]hile such a less-restrictive-means analysis need not entail the government
affirmatively proving that it tried less-restrictive mean . . . it does entail thegovernment giving serious consideration to such less-restrictive means before
opting for a particular regulation.”). The state cannot show that it made any
analysis as to the differences between age verification and content filtering, despite
established Supreme Court precedent favoring the latter. Ashcroft v. ACLU, 542
U.S. at 668. The complete failure of the legislature to consider less-restrictive
alternatives is fatal at the preliminary injunction stage.
Based on the evidence in the parties’ briefing, declarations, and hearing
testimony, it is clear that age verification is considerably more intrusive while less52

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effective than other alternatives. For that reason, it does not withstand strict
scrutiny.
F.

H.B. 1181 Unconstitutionally Compels Speech

There is no doubt that H.B. 1181 forces the adult video companies into
compelled speech. The law requires that they post three disclaimers, calling
pornography “potentially biologically addictive [and] proven to harm human brain
development” among other purported neurological issues. H.B. 1181 §
129B.004(1). The sites must also state, “Exposure to this content is associated withlow self-esteem and body image, eating disorders, impaired brain development,
and other emotional and mental illnesses.” Id. It must also state, “Pornography
increases the demand for prostitution, child exploitation, and child pornography.”
Id. Finally, sites must provide the number of a national mental health illness
hotline. Id.
This is compelled speech. The government is forcing commercial sites to
speak and broadcast a proposition that they disagree with. The Supreme Court has“held time and again that freedom of speech includes both the right to speak freely
and the right to refrain from speaking at all.” Janus, 138 S. Ct. at 2463 (collecting
cases) (quotations omitted). “Compelling individuals to mouth support for views
they find objectionable violates that cardinal constitutional command . . . .” Id.; seealso Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018)53

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 54 of 81(“NIFLA”). Even if, as Defendant argues, the law compels only commercial
speech, it does not pass constitutional muster.
i.

Strict Scrutiny Applies to the Disclosures(a) The law targets speech by its content, not its commercial
natureAlthough H.B. 1181 targets for-profit websites, the speech it regulates islikely non-commercial. First, H.B. 1181’s compelled disclosures are content-based,regardless of whether they regulate commercial activity. See Cincinnati v.
Discovery Network, 507 U.S. 410, 429–30 (1993) (“It is the absence of a neutral
justification . . . that prevents the city from defending its [] policy as content
neutral.”); Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011) (“Government’s
content-based burdens must satisfy the same rigorous scrutiny as its content-based
bans. . . . Commercial speech is no exception.”); Intl. Outdoor, Inc. v. City of Troy,
Michigan, 974 F.3d 690, 706 (6th Cir. 2020) (applying strict scrutiny standard tocontent-based commercial regulations); Reed, 576 U.S. at 166 (“Because strict
scrutiny applies either when a law is content based on its face or when the purpose
and justification for the law are content based, a court must evaluate each question
before it concludes that the law is content neutral and thus subject to a lower levelof scrutiny.”). H.B. 1181 targets speech based upon the “subject matter [and] its
content.” Reed, 576 U.S. at 163. Speakers who promote the regulated subject
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matter must then place disclosures on their advertisements and landing pages. The
threshold inquiry examines the content of a website, not whether something is anadvertisement. H.B. 1181 cannot have effect without reference to content.
Therefore, because the law targets speech based on its content, it is subject to strict
scrutiny. Discovery Network, 507 U.S. at 429–30; Reed, 576 U.S. at 166.
Separately, the regulation is also content-based under the logic of NIFLA.
The heath disclosure notice “compel[s] individuals to speak a particular message”
and “such notices alter the content of their speech.” NIFLA, 138 S. Ct. at 2371
(cleaned up). As in NIFLA, individuals must “provide a government-drafted
script” regarding the controversial effects of pornography, “as well as contact
information” for mental health services. Id. And just like NIFLA, the speakers
must provide information that is “devoted to opposing” the speaker’s actual
preferred message. Id. Because the compelled disclosure alters the content of
Plaintiffs’ speech, H.B 1181 is content-based under NIFLA.15 The logic of NIFLA
demands that the law be subject to strict scrutiny.
(b) The proposed targets are not commercial transactions
Even setting aside Discovery Network and Reed, H.B. 1181 does not
regulate commercial transactions related to speech. “[T]he core notion ofcommercial speech [is] speech which does no more than propose a commercial

15This applies even if, as Defendant argues, Plaintiffs produce only obscene material.

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transaction.” Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60, 66 (1983) (cleanedup). Alternatively, speech may be commercial if it constitutes “expression related
solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas& Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980).
Unlike cigarettes, lightbulbs, or food content, where compelled disclosures havebeen upheld, sexual material is not a fungible consumer good. Rather, “[s]exual
expression which is indecent but not obscene is protected by the First
Amendment.” ACLU v. Reno, 521 U.S. at 875. 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.” And while performers may earn money on sexual expression, they do
not have a “sole” economic interest in that performance.
Volokh v. James is helpful. 22-CV-10195 (ALC), 2023 WL 1991435, at *7–8
(S.D.N.Y. Feb. 14, 2023). There, the court dealt with a requirement that certain
online platforms create a mechanism to file complaints about “hateful speech” anddisclose the policy for dealing with the complaints. Id. at *1–2. The court foundthat the disclosures did not constitute commercial speech because “the policy
requirement compels a social media network to speak about the range of protectedspeech it will allow its users to engage (or not engage) in.” Id. at 7. The court notedthat “lodestars in deciding what level of scrutiny to apply to a compelled statement
56

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must be the nature of the speech taken as a whole and the effect of the compelledstatement thereon.” Id. at *8 (citing Riley, 487 U.S. at 796). “Where speech is‘inextricably intertwined with otherwise fully protected speech, it does not retain
any of its potential commercial character.’” Id. Like Volokh, the law targets
protected speech based on its content outside of commercial applications. The
lessened commercial speech standard does not apply.
Defendant argues that the speech is commercial because the landing pages
for the paid subscription sites “is nothing more than a place to click and thenfollow a prompt to enter your payment information . . . .” (Def.’s Resp., Dkt. # 27,
at 16). Again, this ignores the content-based nature of the regulation in the firstplace. But even setting that aside, the argument is dubious. First, existing
subscribers will have already paid, so the “proposed commercial transaction” will
only apply to new visitors. For returning subscribers, the page is not proposing atransaction. Second, by way of example, several newspapers offer landing pages(or paywalls) that force visitors to purchase a subscription before reading anarticle. Yet it is doubtful that these websites would have diminished First
Amendment rights as a result.16 It is the content the websites offer, and not theexistence of a paywall, that should determine its commercial nature, because paid

Similarly, it is doubtful that the government could regulate shrink-wrapped books in a bookstore
differently than others because those books require a transaction before accessing the content therein.
16

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access that makes speech commercially viable is “inextricably intertwined” withthe speech itself. Riley, 487 U.S. at 796.
Defendant is on slightly stronger footing as to the requirements foradvertisements, but the Court still finds them to be inextricably intertwined with
non-commercial speech. Plainly, the advertisements by themselves are commercial,to the extent they link to paid-subscription websites, because they propose atransaction. Under Bolger, courts should examine (1) an advertising format, (2)reference to a specific product, and (3) economic motivation for publication.
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983).
Setting aside the content-based nature of H.B. 1181 as a whole, theadvertisements likely constitute commercial speech, even when those
advertisements relate to protected speech. Id. at 66. Plainly, they meet the first andthird criteria of Bolger. However, it is a close call whether those advertisements are
inextricably intertwined with protected speech. See Dex Media W., Inc. v. City of
Seattle, 696 F.3d 952, 958 (9th Cir. 2012) (“[T]he inextricably intertwined test
operates as a narrow exception to the general principle that speech meeting theBolger factors will be treated as commercial speech.”); Greater Baltimore Ctr. forPregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 879 F.3d 101,
108–09 (4th Cir. 2018). Assuming that the law is not content based as a whole, thecompelled disclosures are likely commercial as applied to advertising. However,58

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the difficulty regarding the “inextricably intertwined” standard shows why thecompelled disclosures must be considered content-based at the outset. To ignore
the content-based nature of the regulation overall would be to allow thegovernment to regulate disfavored speech with less scrutiny, so long as thegovernment only targets the commercial aspects of that speech. Nonetheless,because Defendant considers the disclosures commercial speech, the Court will
also analyze them under commercial speech precedent.
ii.

The compelled disclosures do not survive strict scrutiny

Assuming that strict scrutiny applies, the compelled disclosures do not passconstitutional muster. Under strict scrutiny, the law must be narrowly tailored toserve a compelling government interest. See, e.g., Playboy Entm’t Grp., Inc., 529
U.S.at 813 (2000). As previously stated, the state has a compelling interest in
preventing minors from accessing pornography. However, for many reasons, thedisclosures are not narrowly tailored. First, and most critically, the disclosures do
not target a minor’s access to pornography because a minor will be screened out by
the age-verification mechanism. Assuming age-verification works, minors will not
be able to access the content on pornographic websites. As a result, the law targets
the group outside the state’s interest (i.e., adults who wish to view legal explicit

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materials).17 A law cannot be narrowly tailored to the state’s interest when it targets
the group exactly outside of the government’s stated interest.
More generally, the state has not met its burden that the disclosures are
narrowly tailored in general. They require large fonts, multiple warnings, andphone numbers to mental health helplines. But the state provides virtually noevidence that this is an effective method to combat children’s access to sexualmaterial. The messages themselves do not mention health effects on minors. And
the language requires a relatively high reading level, such as “potentiallybiologically addictive,” “desensitizes brain development,” and “increases
conditioned responses.” H.B. 1181 § 129B.004. Quite plainly, these are notdisclosures that most minors would understand. Moreover, the disclosures are
restrictive, impinging on the website’s First Amendment expression by forcing
them to speak government messages that have not been shown to reduce or deter
minors’ access to pornography. See 303 Creative LLC v. Elenis, 143 S. Ct. 2298,
2312 (2023) (“[T]he government may not compel a person to speak its own
preferred messages.”). Under strict scrutiny, the disclosures do not survive.
iii.

H.B. 1181 Fails as a Commercial Speech Regulation

The state has not argued a compelling interest in preventing adults from accessing pornography. Indeed,
Defendant argues that the law is permissible precisely because it does not restrict adult access. (Def.’s
Resp., Dkt. # 27, at 13).
1760

Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 61 of 81(a) The regulations do not directly advance a substantial
government interest
Even using commercial speech standards, the disclosures do not pass muster.
For a commercial speech regulation to survive, it must directly advance a
substantial government interest and be narrowly tailored so as not to be more
extensive than necessary. Cent. Hudson, 447 U.S. at 566. For the same reasons thatthe law fails strict scrutiny, it fails the more relaxed commercial speech standard.
Although the compelled disclosures apply almost exclusively to adults, the state
claims its interest is in “protecting children from porn.” (Def.’s Resp., Dkt. # 27, at
16). This is not “directly advancing” the interest because only adults can access thematerial on websites that post this warning. Moreover, the disclosures are plainly
more excessive than necessary, requiring the parties to post in all caps, three times,“TEXAS HEALTH AND HUMAN SERVICES WARNING.” H.B. 1181 §
129.B.004. And, as discussed below, the disclosures state scientific findings as amatter of fact, when in reality, they range from heavily contested to unsupported by
the evidence. See infra, Section III.F.iii.b.
In its response, the state does not assert an interest in protecting adults from
non-obscene pornography, who will be the actual target of the messages. It is likelythat this interest would not be substantial or permissible. The mere fact that nonobscene pornography greatly offends some adults does not justify its restriction to61

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all adults. See Carey v. Population Services Int’l, 431 U.S. 678, 701 (1977)(“[W]here obscenity is not involved, we have consistently held that the fact that
protected speech may be offensive to some does not justify its suppression.”);Matal v. Tam, 582 U.S. 218, 243–44 (“Giving offense is a viewpoint. We have said
time and time again that the public expression of ideas may not be prohibited
merely because the ideas are themselves offensive to some of their hearers.”)(cleaned up); see also Robert C. Post, Cultural Heterogeneity and Law:
Pornography, Blasphemy, and the First Amendment, 76 Cal. L. Rev. 297, 325–26(1988) (“[T]he government would acquire enormous and intolerable powers ofcensorship if it were to be given the authority to penalize any speech that would
tend to induce in an audience disagreeable attitudinal changes with respect tofuture conduct.”).
This applies equally to commercial speech. C. Hudson, 447 U.S. at 578 (“Nodifferences between commercial speech and other protected speech justify
suppression of commercial speech in order to influence public conduct throughmanipulation of the availability of information.”) (Blackmun, J., concurring);
Zauderer v. Off. of Disc. Counsel of S. Ct. of Ohio, 471 U.S. 626, 651 (1985)(differentiating government regulations meant to protect consumers from those that
seek to “prescribe what shall be orthodox in politics, nationalism, religion, or other62

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matters of opinion”) (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,642 (1943)).
In short, if the interest is in protecting children, then it may arguably besubstantial, but it is advanced indirectly. If the interest is in changing adults’attitudes on porn and sexuality, then the state cannot claim a valid, substantial
interest. Either way, the compelled messages fail under Central Hudson.
(b) Zauderer does not apply
Defendant argues that H.B. 1181 regulates commercial speech in a mannerthat is “truthful, non-misleading, and [requires] relevant disclosures” and istherefore constitutional. (Def.’s Resp., Dkt. # 27, at 13 (citing Texas Med.
Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 577 (5th Cir. 2012)).
But Texas Med. Providers dealt with speech regarding abortion, and the caseadopted its language from since-overruled abortion precedent regarding “undue
burdens.” Texas Med. Providers, 667 F.3d at 577 (citing Planned Parenthood of
S.E. Pennsylvania v. Casey, 505 U.S. 833 (1992), overruled by Dobbs v. Jackson
Women’s Health Org., 142 S. Ct. 2228 (2022)). It does not apply to other forms ofcommercial speech. Instead, the relaxed standard for certain compelled disclosuresapplies if they contain “purely factual and uncontroversial information.” Zauderer,
471 U.S. at 651. If the information is “purely factual and uncontroversial,” thegovernment must only show that the compelled disclosures reasonably relate to a63

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substantial government interest and are not “unjustified or unduly burdensome.”Id.
At the initial stage, H.B. 1181 still fails, because the government lacks asubstantial interest that reasonably relates to the regulation. It is unreasonable towarn adults about the dangers of legal pornography in order to protect minors. But
even assuming this was a cognizable interest, Zauderer would still not apply. First,
H.B. 1181’s messages are unduly burdensome. The requirement requires no fewer
than four distinct messages to be presented each time a person visits the landing
page or advertisement. The disclosures must be in 14-point font size, which isagain unclear and burdensome because digital fonts on webpages are not measured
in points. This is particularly difficult for advertisements, because they rarely takeup an entire page. Often, online advertisements are limited to a small sliver of a
webpage. Requiring large font sizes in the context of advertisements would likely
be overly burdensome because they risk swallowing up the entire advertisement
itself. See Ibanez v. Fla. Dept. of Bus. and Prof. Reg., Bd. of Accountancy, 512
U.S. 136, 146 (1994) (holding a compelled message was unconstitutional when it“effectively rule[d] out” the initial message). And the warnings themselves are
somewhat deceptive. Defendant has not shown that the Texas Health and Human
Services Commission has actually endorsed the message or made the relevant
medical findings, despite requiring speakers to display “TEXAS HEALTH AND
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HUMAN SERVICES WARNING” three separate times in all caps.18 Because of
the size and repeated nature of the warnings, as well as their potential for
misleading visitors, they are likely to be unduly burdensome.
Second, the disclosures are deeply controversial. To receive the more lenient
Zauderer standard, the message at issue must be “purely factual anduncontroversial information.” Id. Outside of factual and non-controversial
information, Zauderer’s relaxed standard does not apply. See Hurley v. Irish–Am.
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995). The
warnings are controversial, both as a matter of fact and opinion.
The Court assumes, at the preliminary injunction stage, that the healthdisclosures—as opposed to the mental health hotline—are “purely factual.”19
Regardless of their accuracy, the health disclosures purport to show scientificfindings. The mental health line, however, is not factual. It does not assert a fact,
and instead requires companies to post the number of a mental health hotline. The
implication, when viewers see the notice, is that consumption of pornography (orany sexual material) is so associated with mental illness that those viewing it

Ironically, while Zauderer allowed the government to regulate deceptive speech, here, it is thegovernment’s message that is potentially deceptive. 471 U.S. at 651.
19
In particular, whether the disclosures are “purely factual” depends on whether scientifically contested
statements are still “factual.” See, e.g., Nat’l Ass’n of Manufacturers v. S.E.C., 800 F.3d 518, 528 (D.C.
Cir. 2015); Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 22 (D.C. Cir. 2014); Am. Beverage Ass’nv. City & Cnty. of San Francisco, 916 F.3d 749, 763 (9th Cir. 2019) (Ikuta, J., concurring in part anddissenting in part). But the Court reserves the “purely factual” question for a later stage, because factual
or not, the disclosures are plainly controversial.
18

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should consider seeking professional crisis help. The statement itself is not factual,and it necessarily places a severe stigma on both the websites and its visitors.20
Much more seriously, however, is the deep controversy regarding thebenefits and drawbacks of consumption of pornography and other sexual materials.
Just like debates involving abortion, pornography is “anything but an
uncontroversial topic.” Natl. Inst. of Fam. and Life Advocates v. Becerra, 138 S.
Ct. 2361, 2372 (2018). Defendant’s own exhibit admits this. (Principi article, Dkt.
# 27, at 2 (“Scientific evidence supporting the negative effects of exposure to[sexually explicit internet material] is controversial, and studies addressing this
topic are difficult because of important methodological discrepancies.”)). As apolitical, religious, and social matter, consumption of pornography raises difficultand intensely debated questions about what level and type of sexual exposure isdangerous or healthy. See, e.g., Jeneanne Orlowski, Beyond Gratification: The
Benefits of Pornography and the Demedicalization of Female Sexuality, 8 Modern
Am. 53 (Fall 2012) (arguing for constitutional protection of non-obscene
pornography); Andrea Dworkin, Against the Male Flood: Censorship,
Pornography, and Equality, 8 Harv. Women’s L.J. 1 (1985) (arguing, among otherFor an expression to be purely factual, “it must be information with an objective truth or existence.”
R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 6:20-CV-00176, 2022 WL 17489170 (E.D. Tex.
Dec. 7, 2022) (appeal docketed, Feb. 6, 2023) (citing Lawrence Solum, Legal Theory Lexicon: Fact andValue, https://lsolum.typepad.com/legaltheory/2019/07/legal-theory-lexicon-fact-and-value.html (July 7,2019)).
20

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things, that pornography depicts and leads to the subordination of women);
Athanasia Daskalopoulou & Maria Carolina Zanette, Women’s Consumption of
Pornography: Pleasure, Contestation, and Empowerment, 54 Sociology 969(2020) (noting that female consumption of pornography is both “empowering anddisciplining” for women); Samuel L. Perry, Banning Because of Science or In Spiteof it? Scientific Authority, Religious Conservatism, and Support for Outlawing
Pornography, 1984–2018, 100 Social Forces 1385 (March 2022) (examining
scientific citations in anti-pornography advocacy and suggesting that the antipornography movement is growing “more connected to religious conservatism thanviews about scientific authority”). The intense debate and endless sociologicalstudies regarding pornography show that it is a deeply controversial subject. The
government cannot compel a proponent of pornography to display a highly
controversial “disclosure” that is profoundly antithetical to their beliefs.
Beyond the differing moral values regarding pornography, the state’s healthdisclosures are factually disputed. Plaintiffs introduce substantial evidence
showing that Texas’s health disclosures are either inaccurate or contested byexisting medical research. Dr. David Ley, for example, is a clinical psychologist in
the states of New Mexico and North Carolina who specializes in treating sexuality
issues. (Ley Decl., Dkt # 5-3, at 1–4). As Ley states, “There currently exists nogenerally accepted, peer-reviewed research studies or scientific evidence which
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indicate that viewing adult oriented erotic material causes physical, neurological,
or psychological damage such as ‘weakened brain function’ or ‘impaired brain
development.’” (Id.) Included in Ley’s declaration are more than 30 psychologicalstudies and metanalyses contradicting the state’s position on pornography. (Id.)
Moreover, Ley points out that the mental health hotline number is unsupported
because the standard manual of classification of mental disorders, the DSM-5-TR,
does not consider pornography addiction as a mental health disorder, and in fact,
explicitly rejected that categorization as unsupported in 2022. (Id. at 5–6). Finally,
the hotline, which links to the Substance Abuse and Mental Health Services
Administration helpline, will be of little to no aid because they are likely nottrained to deal with pornographic use or addiction. (Id. at 5–7).
Defendant, meanwhile, introduces evidence suggesting that pornography isdangerous for children to consume. One study of boys in Belgium, for example,
suggests that “an increased use of Internet pornography decreased boys’ academic
performance six months later.” (Bouché Decl. Dkt. # 26-8, at 2). Another metaanalysis suggests that pornography is harmful to adolescents but encourages
parental intervention alongside content filtering to mitigate these harms. (Principi
Article, Dkt. #. 27-6, at 9–10). These studies, however, are inapplicable to thecompelled disclosures, which make no mention of the effects on children and areprimarily targeted at adults.
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Each portion of the compelled message is politically and scientificallycontroversial. This is a far cry from cigarette warnings. Unlike cigarettes,
pornography is the center of a moral debate that strikes at the heart of a pluralistic
society, involving contested issues of sexual freedom, religious values, and genderroles. And the relevant science, shows, at best, substantial disagreement amongst
physicians and psychologists regarding the effects of pornography.21 Even if thedisclosures are commercial speech, Zauderer cannot apply.
G.

Section 230

Separate from the First Amendment claim, Plaintiffs argue that Section 230
of the CDA preempts H.B. 1181. (Mot. Prelim. Inj., Dkt. # 5, at 17–18). The CDA
states that “[n]o provider or user of an interactive computer service shall be treatedas the publisher or speaker of any information provided by another information
content provider.” 47 U.S.C. § 230(c)(1). “Websites are the most common
interactive computer services.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d
1093, 1097 (9th Cir. 2019).
In Doe v. MySpace, Inc., the Fifth Circuit held that “Congress provided
broad immunity under the CDA to Web-based service providers for all claims

At worst for Texas, the science shows that many of their claims are entirely without support. For
example, one disclosure requires websites to state that pornography “desensitizes brain reward circuits[and] increases conditioned responses” for viewers. H.B. 1181 129B.004. Defendant’s study, however,shows that “sensation seeking” is predictive of pornography consumption, not the other way around.
(Bouché Decl. Dkt. # 26-8, at 2). No other studies appear to support the position.
21

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stemming from their publication of information created by third parties[.]” 528
F.3d 413, 418 (5th Cir. 2008). This includes sexual materials. See, e.g.,
Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 813, 828 (M.D. Tenn. 2013)(applying section 230 to a Tennessee law “criminaliz[ing] the sale of certain sexoriented advertisements”). Under section 230, “[p]arties complaining that they
were harmed by a Web site’s publication of user-generated content . . . may sue thethird-party user who generated the content.” MySpace, 528 F.3d at 419. But theycannot sue “the interactive computer service that enabled them to publish thecontent online.” Id.
Defendant seeks to differentiate MySpace because the case dealt with anegligence claim, which she characterizes as an “individualized harm.” (Def.’s
Resp., Dkt. # 27, at 19). MySpace makes no such distinction. The case dealt with aclaim for individualized harm but did not limit its holding to those sorts of harms.
Nor does it make sense that Congress’s goal of “[paving] the way for a robust newforum for public speech” would be served by treating individual tort claims
differently than state regulatory violations. Bennett v. Google, LLC,
882 F.3d 1163, 1166 (D.C. Cir. 2018) (cleaned up). The text of the CDA is clear:“No cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
“[A]ny” state law necessarily includes those brought by state governments, so70Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 71 of 81

Defendant’s distinction between individual vs. regulatory claims is without merit.22
The Fifth Circuit “and other circuits have consistently given [Section 230(c)]a wide scope.” Google, Inc. v. Hood, 822 F.3d 212, 220-21 (5th Cir. 2016) (quoting
MySpace, 528 F.3d at 418). “The expansive scope of CDA immunity has beenfound to encompass state tort claims, alleged violations of state statutory law,requests for injunctive relief, and purported violations of federal statutes not
specifically excepted by § 230(e).” Hinton v. Amazon.com.dedc, LLC, 72 F. Supp.
3d 685, 689 (S.D. Miss. 2014) (citing cases).
Next, Defendant argues that Section 230 does not apply because only thedomestic websites are protected by the law, and those websites only post their own
content—not those of third parties. (Def.’s Resp., Dkt. # 27, at 19–20 (citing AOSI,
140 S. Ct. at 2087)). AOSI does not deal with protection under Section 230, andthe Supreme Court’s dicta regarding extraterritoriality deals with the statutory
rights of “foreign citizens abroad”—not those speaking within the country. AOSI,
140 S. Ct. at 2087. Cases that do discuss Section 230, dealing with conduct that
occurs domestically, have extended the law’s protection to foreign publishers. See
Force v. Facebook, Inc., 934 F.3d 53, 74 (2d Cir. 2019), cert. denied, 140 S. Ct.
2761 (2020); Fairfield Sentry Ltd. (In Liquidation) by and through Krys v.
Even if Section 230 did apply exclusively to individual harms, the law would still be preempted,
because H.B. 1181 creates increased penalties when an individual minor accesses a violating website.
H.B. 1181 § 129B.006(b). Pure regulatory violations lead to $10,000.00 in damages, but the state imposes
an additional $240,000.00 in damages for a minor’s access to the website.
22

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Citibank, N.A. London, 630 F. Supp. 3d 463, 495 (S.D.N.Y. 2022).23 As the Second
Circuit held in Force:“[W]e conclude from the text of Section 230, particularly
the words “shall be treated,” that its primary purpose islimiting civil liability in American courts. The regulated
conduct—the litigation of civil claims in federal courts—
occurs entirely domestically in its application here. We
thus hold that the presumption against extraterritoriality is
no barrier to the application of Section 230(c)(1) in thiscase.”
934 F.3d at 74.
Thus, the foreign website Plaintiffs may claim the protection of Section 230
when failing to do so would subject them to imminent liability for speech that
occurs in the United States. Force, 934 F.3d at 74. Because the foreign website
Plaintiffs host content provided by other parties, they receive protection under
Section 230. MySpace, 528 F.3d at 419.
As Defendant notes, the second element of immunity under § 230(c)“requires that the claims are all based on content provided by another information
content provider.” Wells v. YouTube, LLC, 3:20-CV-2849-S-BH, 2021 WL
2652966, at *3 (N.D. Tex. May 17, 2021) (emphasis added), adopted 3:20-CV2849-S-BH, 2021 WL 2652514 (N.D. Tex. June 28, 2021). To the extent that the

The Ninth Circuit came to a similar conclusion, finding that the “relevant conduct occurs where
immunity is imposed . . . .” Gonzalez v. Google LLC, 2 F.4th 871, 888 (9th Cir. 2021). The Supreme
Court granted cert, but declined to reach the Section 230 analysis because it found that the statute at issue
did not apply to the Defendants’ conduct. Gonzalez v. Google LLC, 598 U.S. 617 (2023); Twitter, Inc. v.
Taamneh, 598 U.S. 471 (2023).
23

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domestic website Plaintiffs and foreign website Plaintiffs create or develop thecontent they themselves post, they are not entitled to immunity. 47 U.S.C. §230(c)(1); id. § 230(f)(3). Based on Plaintiffs’ pleadings, it is clear that certain
websites create their own content to be posted. For example, MG Premium Ltd
owns the website Brazzers.com and creates content for the site. Those Plaintiffs
that develop and post their own content are not entitled to an injunction on Section
230 grounds. Still, other Plaintiffs, such as WebGroup, which operates XVideos,
only hosts third-party content, and therefore is entitled to Section 230 protection.
Because certain Plaintiffs are likely to succeed on the Section 230 claims,
they are entitled to a preliminary injunction. “[S]ection 230 must be interpreted toprotect websites not merely from ultimate liability, but from having to fight costly
and protracted legal battles.” Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008); Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (“[I]mmunity
is an immunity from suit rather than a mere defense to liability and . . . iseffectively lost if a case is erroneously permitted to go to trial.”). Because Section
230 provides immunity, rather than a simple defense to liability, those Plaintiffs areentitled to an injunction.

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Specifically, Plaintiffs MG Freesites LTD, WebGroup Czech Republic, NKL
Associates, s.r.o., and MediaMe SRL shall be entitled to an injunction under
Section 230.
IV. DISCUSSION – HARM AND EQUITIESA.

Irrepable Harm

Plaintiffs are likely to suffer irreparable harm in the absence of an
injunction. To show irreparable harm, “[t]he plaintiff need show only a significant
threat of injury from the impending action, that the injury is imminent, and thatmoney damages would not fully repair the harm.” Humana, Inc. v. Avram A.
Jacobson, M.D., P.A., 804 F.2d 1390, 1394 (5th Cir. 1986). In addition, ongoing,
non-recoverable compliance costs constitute irreparable harm, even where the
district court does not consider evidence of the costs credible, so long as the harm
is more than de minimis. Rest. L. Ctr. v. U.S. Dept. of Lab., 66 F.4th 593 (5th Cir.
2023).
Without a preliminary injunction, Plaintiffs will suffer several types of
irreparable harm. First, they will endure non-recoverable compliance costs. Under
Fifth Circuit precedent, “[N]onrecoverable costs of complying with a putatively
invalid regulation typically constitute irreparable harm.” Id. (citing Louisiana v.
Biden, 55 F.4th 1017, 1034 (5th Cir. 2022)). “Complying with a regulation later
held invalid almost always produces the irreparable harm of nonrecoverable
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compliance costs.” Id. A court should emphasize compliance costs’ recoverability,
rather than their magnitude. Id.
Defendant’s argument directly contradicts the Fifth Circuit’s instruction in
Restaurant Law. Defendant states that “Plaintiffs provide insufficient evidence toshow that any alleged monetary losses are significant” in light of their large global
operations. (Def.’s Resp., Dkt. # 27, at 22). This runs headfirst into the Restaurant
Law’s holding that “the key inquiry is ‘not so much the magnitude but theirreparability.’” 66 F.4th at 597 (citing Texas v. EPA, 829 F.3d 405, 433 (5th Cir.
2016)). Like Restaurant Law, Plaintiffs’ monetary injuries are nonrecoverable—
Defendant does not contend otherwise. And they are more than de minimis,
because Plaintiffs will have to find, contract with, and integrate age verification
systems into their websites. These services come at substantial cost—at thecheapest around $40,000.00 per 100,000 visits. (Compl., Dkt. # 1, at 18; SonnierDecl., Dkt. # 5-2, at 54). Under Restaurant Law, the ongoing compliance costs
constitute irreparable harm.
Second, Plaintiffs will incur irreparable harm through violations of theirFirst Amendment rights. “The loss of First Amendment freedoms, for evenminimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 373 (1976). In ACLU v. Ashcroft, the Third Circuit
considered this issue so obvious that it devoted no more than a footnote to the75Case 1:23-cv-00917-DAE Document 36 Filed 08/31/23 Page 76 of 81

question. 322 F.3d at 251 n.11 (noting that likelihood of success on the merits “isthe only [prong] about which any real debate exists”). A party cannot speak freely
when they must first verify the age of each audience member, and this has aparticular chilling effect when the identity of audience members is potentiallystored by third parties or the government.
Irreparable harm is particularly acute in the context of compelled speech
because the association of a speaker with the compelled message cannot be easily
undone. See Barnette, 319 U.S. at 633 (noting that a law commanding “involuntary
affirmation” of objected-to beliefs would require “even more immediate and urgent
grounds” than a law demanding silence). This harm includes, as Plaintiffs argue, aloss of goodwill. H.B. 1181 will force Plaintiffs to display a controversial position
as though it were scientific fact, and this will result in incalculable damages to their
goodwill and reputation. Wright & Miller, Federal Practice and Procedure: Civil §2948.1 (“Injury to reputation or goodwill is not easily measurable in monetary
terms, and so often is viewed as irreparable.”).
Defendant argues that these losses are “compensable.” (Def.’s Resp., Dkt. #27, at 21–22). But to be compensable, damages must be capable of calculation or
estimation. Innovative Manpower Sols., LLC v. Ironman Staffing, LLC, 929 F.
Supp. 2d 597, 620 (W.D. La. 2013). Here, they are not, because the loss of
goodwill and visitors may endure for years beyond this litigation. Second, and76

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more seriously, Defendant ignores that the state is entitled to sovereign immunityfrom monetary claims. VanDerStok v. Garland, No. 4:22-CV-00691-O, 2022 WL
4809376, at *3 (N.D. Tex. Oct. 1, 2022) (citing Wages & White Lion Invs., L.L.C.
v. FDA, 16 F.4th 1130, 1142 (5th Cir. 2021)); Kimel v. Florida Bd. of Regents, 528
U.S. 62, 72–73 (2000). Because the monetary losses are significant and nonrecoverable, their imminent occurrence constitutes irreparable harm.
Finally, in the context of Section 230, Plaintiffs will suffer irreparable harmby having to expend non-recoverable resources litigating lawsuits where federal
law expressly prohibits causes of action from being brought. 47 U.S.C. § 230(e)(3).
In short, Plaintiffs have shown that their First Amendment rights will likely
be violated if the statute takes effect, and that they will suffer irreparable harmabsent an injunction. Defendant suggests this injury is speculative and notimminent, (Def.’s Resp., Dkt. # 27, at 21–23), but this is doubtful. H.B. 1181 takes
effect on September 1—mere days from today. That is imminent. Nor is the harm
speculative. The Attorney General has not disavowed enforcement. To the contrary,
her brief suggests a genuine belief that the law should be vigorously enforced
because of the severe harms purportedly associated with what is legal pornography.
(Id. at 1–5). It is not credible for the Attorney General to state that “[p]orn isabsolutely terrible for our kids” but simultaneously claim that they will not enforce
a law ostensibly aimed at preventing that very harm. Because the threat of77

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enforcement is real and imminent, Plaintiffs’ harm is non-speculative. It isaxiomatic that a plaintiff need not wait for actual prosecution to seek a preenforcement challenge. See Babbitt v. United Farm Workers Nat. Union, 442 U.S.
289, 298 (1979). In short, Plaintiffs have more than met their burden of irreparable
harm.
B.

The Balance of Harms and Public Interest Favor an Injunction“[E]nforcement of an unconstitutional law is always contrary to the public
interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). “Injunctions
protecting First Amendment freedoms are always in the public interest.” Opulent
Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 298 (5th Cir. 2012)(quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006)). The
Fifth Circuit recently reaffirmed this principle, explicitly noting that although thegovernment “suffers a form of irreparable injury” when it is enjoined fromenforcing its statutes, it likewise has no “interest in enforcing a regulation that
violates federal law.” All. for Hippocratic Med., 2023 WL 5266026, at *28(quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)). As the circuit court
noted, when assessing the state’s interest in a law that conflicts with federal
statutes or the Constitution, the “government/public-interest analysis collapses withthe merits.” Id. Because H.B. 1181 is likely unconstitutional, the state cannot claim
an interest in its enforcement. Id.
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C.

Scope of the Injunction

The Court finds that H.B. 1181 is unconstitutional on its face. The statute is
not narrowly tailored and chills the speech of Plaintiffs and adults who wish toaccess sexual materials. “[I]f the arguments and evidence show that a statutory
provision is unconstitutional on its face, an injunction prohibiting its enforcement
is proper.” Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, (2016) (cleanedup), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., 142 S.
Ct. 2228 (2022). A statute that is unconstitutional on its face “is invalid in toto—
and therefore incapable of any valid application.” People for Ethical Treatment of
Animals v. Hinckley, 526 F. Supp. 3d 218, 226 (S.D. Tex. 2021) (cleaned up). H.B.
1181 is unconstitutional on its face. The text of the law is facially content based
because it screens out sexual content for regulation. See infra, Section III.C.i. And
the law is not narrowly tailored because it substantially regulates protected speech,
is severely underinclusive, and uses overly restrictive enforcement methods. See
infra, Section III.D. “As the foregoing analysis confirms, the Court cannot resolve
this case on a narrower ground without chilling” protected speech. Citizens United
v. Fed. Election Commn., 558 U.S. 310, 329 (2010); Fallon, supra note 10, at
1344–48; see also Am. Civ. Liberties Union v. Mukasey, 534 F.3d (affirming
nationwide injunction against Attorney General for enforcement of COPA as
unconstitutional on its face), cert denied 129 S. Ct. 1033. Accordingly, the Court
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will enjoin Defendant Colmenero from taking any enforcement action under H.B.
1181 pending further order or final judgment.24
V. CONCLUSIONAt the core of Defendant’s argument is the suggestion that H.B. 1181 isconstitutional if the Supreme Court changes its precedent on obscenity. Defendant
may certainly attempt a challenge to Miller and Reno at the Supreme Court. But it
cannot argue that it is likely to succeed on the merits as they currently stand based
upon the mere possibility of a change in precedent. Nor can Defendant argue thatthe status quo is maintained at the district court level by disregarding Supreme
Court precedent. The status quo has been—and still is today—that content filtering
is a narrower alternative than age verification. Ashcroft v. ACLU, 542 U.S. at 667.
The Court agrees that the state has a legitimate goal in protecting children
from sexually explicit material online. But that goal, however crucial, does notnegate this Court’s burden to ensure that the laws passed in its pursuit comportwith established First Amendment doctrine. There are viable and constitutional
means to achieve Texas’s goal, and nothing in this order prevents the state frompursuing those means. See ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa.
2007), aff’d, 534 F.3d 181. (“I may not turn a blind eye to the law in order to

As previously stated, the injunction for Plaintiffs’ Section 230 claims shall apply only to Plaintiffs MG
Freesites LTD, WebGroup Czech Republic, NKL Associates, s.r.o., and MediaMe SRL.
24

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attempt to satisfy my urge to protect this nation’s youth by upholding a flawed
statute, especially when a more effective and less restrictive alternative is readily
available[.]”).
Because the Court finds that H.B. 1181 violates the First Amendment of theUnited States Constitution, it will GRANT Plaintiffs’ motion for a preliminary
injunction, (Dkt. # 5), as to their First Amendment claims and GRANT the motion
in part and DENY the motion in part as to their Section 230 claims.
Defendant Angela Colmenero, in her official capacity as Attorney Generalfor the State of Texas, is preliminarily ENJOINED from enforcing any provisionof H.B. 1181.
IT IS SO ORDERED.
DATED: Austin, Texas, August 31, 2023.

David Alan Ezra
Senior United States District Judge81