MEMPHIS, Tenn. — A U.S. district court on Tuesday denied the Tennessee attorney general’s motion to dismiss a Free Speech Coalition lawsuit challenging the Protect Tennessee Minors Act as unconstitutional.
The Protect Tennessee Minors Act (PTMA), that state’s age verification law for adult sites, was enacted in 2024, prior to the Supreme Court’s pivotal decision in Free Speech Coalition v. Paxton. In November 2024, FSC and co-plaintiffs MelRose Michaels, sex education platform O.school, sexual wellness retailer Adam & Eve and adult fan platform JustFor.Fans filed a legal challenge, prompting a Tennessee district court to temporarily block the law. However, the 6th Circuit Court of Appeals lifted that preliminary injunction, allowing the law to go into effect.
Following the Supreme Court’s June 2025 decision in FSC v. Paxton, FSC reps vowed to retrench in order to define “sensible limits” on AV laws so that anti-porn legislators cannot keep chipping away at the right of adults to access protected speech.
In an amended complaint, FSC and its co-plaintiffs argued that the PTMA violates the First Amendment by imposing a content-based burden on protected speech, unlikely to survive even the “intermediate scrutiny” required under the SCOTUS ruling. The complaint also asserted that the law’s vagueness violates the 14th Amendment’s due process clause, and that treating website operators as publishers of material produced by other content providers conflicts with Section 230 of the federal Communications Decency Act.
The amended complaint acknowledged the change in the legal landscape since the Paxton ruling, but maintained that Tennessee has overstepped even the expanded bounds defined in that ruling.
In response, Tennessee Attorney General Jonathan Skrmetti filed a motion to dismiss, contending that the plaintiffs lacked standing to sue him and that FSC and the other plaintiffs failed to present “sufficient facts to state a plausible claim.”
On Tuesday, Chief Judge Sheryl H. Lipman of the U.S. District Court for the Western District of Tennessee denied Skrmetti’s motion, ruling that the case can go forward.
The FSC’s counsel in the case, Jeff Sandman, praised Lipman’s “thorough, thoughtful, and reasoned decision.”
“We are excited to vigorously pursue our claims as the case enters its next phase,” he said.
FSC board chair Jeffrey Douglas commented, “This was an important winning step in these early stages of the litigation. Most importantly, the court ruled that we have ‘standing,’ the essential requirement in any federal lawsuit. Standing is an increasingly difficult hurdle to overcome in recent years, with conservative courts using it to block access to federal relief. The attorney general lost on a number of other important issues, allowing us to proceed on the substance of all of our constitutional challenges — that the definitions are vague, that the requirement that websites hold verification of the age of adult users for seven years violates privacy, that reverifying the user hourly is too burdensome, the law is overbroad and underinclusive, and finally, that the law is preempted by existing federal law, the Communications Decency Act. None of our claims were dismissed by the court!”
Tuesday’s ruling notes that while the Constitution recognizes “a valid governmental interest” in dealing with obscenity, the mere assertion of that interest does not automatically trump constitutional protections.
While Lipman did not rule on the plaintiffs’ assertion that the PTMA violates the First Amendment and is therefore unconstitutional, she did rule that the FSC and the other plaintiffs do indeed have standing and have indeed stated a plausible claim, as specific provisions of the Protect Tennessee Minors Act — such as a requirement that a user’s age must be reverified every 60 minutes — could be argued to impose a heightened burden on adult users’ access to sexual content.
In addition, Lipman called it “plausible” that certain terminology in the law is so vague that a person of ordinary intelligence might not understand what is or is not prohibited by the PTMA.
“Plaintiffs plausibly allege that the PTMA as amended may substantially burden more speech than necessary,” Lipman writes.
One area where the law could potentially be deemed too vague is its definition of a covered website as one on which a “substantial portion” of the material on the website is harmful to minors. Like a number of other state AV laws, the PTMA defines “substantial portion” as one-third or more of the total data, but without specifying exactly what this means.
As a result, Lipman notes, the law allows Tennessee to decide what constitutes a “substantial portion” using an “excessively subjective” standard. While she did not rule on whether that vagueness renders the law unconstitutional, Lipman did agree with the plaintiffs that their allegations that the terms are unconstitutionally vague are plausible.
Should the court ultimately rule that the “substantial portion”/”one third” rule is indeed unconstitutionally vague, such a decision could ultimately have ramifications in other states where AV laws include that provision.
Lipman likewise found the plaintiffs’ argument that the PTMA may be preempted by Section 230 protections to be plausible.
Importantly, Lipman also ruled that “intermediate scrutiny” should apply in the case. The FSC argued that the highest level of judicial review, “strict scrutiny,” should apply, while the state of Tennessee argued for intermediate scrutiny. While the case can now move forward, Lipman’s ruling that only intermediate scrutiny applies will almost certainly make it more difficult for the plaintiffs to prove that the law violates the First Amendment.
