AUSTIN, Texas — A three-judge panel of the 5th Circuit Court of Appeals issued on Tuesday an “administrative stay” on the injunction obtained last month by Free Speech Coalition (FSC) and other plaintiffs, creating a confusing situation around the enforcement of Texas’ controversial “age verification” law that unconstitutionally mandates adult websites to post anti-porn propaganda.
In a two sentence ruling which offers no details or explanations, the panel effectively removed the preliminary injunction, “meaning that the law is immediately in effect,” TechDirt’s Mike Masnick reported.
As XBIZ reported, on Aug. 31 a federal court in Texas granted the preliminary injunction to (FSC) and its co-plaintiffs, thereby blocking the Texas attorney general from enforcing the state’s controversial anti-porn age verification law while the case is litigated.
The Republican-authored HB 1181 was passed by the Texas legislature with bipartisan support in May and was scheduled to go into effect Sept. 1.
FSC Director of Public Affairs Mike Stabile confirmed to XBIZ that the 5th Circuit “has temporarily stayed our preliminary injunction in Texas, in favor of an expedited hearing by a different panel of judges, who will take a closer look at the law in the next few weeks.
“While we remain confident the injunction will hold,” Stabile added, “there remains potential risk for adult businesses in the meantime. However, we have reason to believe that the Attorney General’s office will refrain from enforcing the law until that hearing. If, however, anyone is receives contact from the state of Texas, or anyone else attempting to enforce the law at this time, we ask that they immediately contact FSC.”
A Predictably Partisan Decision by the 5th Circuit Judges
Industry attorney Lawrence Walters, from the Walters Law Group, told XBIZ that the district court’s order granting the injunction against the age verification obligations and compelled “health warnings” for adult websites was “thorough and well-reasoned.”
“It is very unusual for a federal appeals court to effectively reverse such an injunction without any legal analysis,” Walters explained. “This odd turn of events has created some legal chaos in the short term, which will hopefully be cleared up soon by expedited court proceedings.”
According to Masnick’s analysis, the cryptic Fifth Circuit decision was predictable partisan and inconsistent with both First Amendment jurisprudence and some of the court’s own recent decisions.
“Just last week we wrote about the decision in the 5th Circuit saying that the government cannot coerce websites regarding how they moderate content,” Masnick wrote. “We noted that this seemed to be in near total conflict with last year’s 5th Circuit ruling saying that of course governments can tell websites how to moderate (the only point on which they are consistent is that ‘it’s okay when Republicans do it, and not okay when Democrats do it’).”
Tuesday’s decision, Masnick added, the two-line decision apparently reinstating HB 1181 mandate to force adult websites to post supposed “Texas Health and Human Services” warnings, which originate in religiously inspired anti-porn propaganda rather than the Texas Health and Human Services Department.
The 5th Circuit decision ignores the lower court’s opinion that the warning violates constitutional protections against “compelled speech,” and, as had happened before in other cases where the court appeared to rubberstamp decisions by Republican politicians, provides no explanation as to why.
“Once again, the ruling gives no details at all,” Masnick added. “It’s two sentences this time (up from one the last time), and just effectively removes the preliminary injunction, meaning that the law is immediately in effect. The only difference from last year’s similar nonsense is that the court says the appeal is ‘expedited’ to the next available oral argument panel.
“Either way, the law is now in effect and we have no idea what that means because the 5th Circuit has explained nothing,” Masnick concluded.