Texas' anti-porn crusade is gaining traction

 Illustration of an aubergine emoji cut in half.
Illustration of an aubergine emoji cut in half.

It is often said that pornography is what pushes — or at least what helps move — new technologies into mass public adoption. At the same time, just as pornography allegedly pushed the boundaries of technology, efforts to restrict or even abolish porn have also played a major role in shaping many of the laws and customs under which we all live.

For the past several months, conservative Texas Attorney General Ken Paxton has led the charge against digital pornography in his state, suing multiple adult entertainment companies under HB1181, a recently enacted law requiring sexually explicit websites to force users to verify their age with government issued IDs or other "commercially reasonable" methods. While some companies have adjusted their verification protocols accordingly, several major pornography sites including industry giants like PornHub and xHamster, have discontinued service in Texas entirely. Texas' law was passed "without any means to enforce at scale" and will result in users visiting other adult sites "with far fewer safety measures in place, which do not comply" with the law, PornHub said in a statement to the Houston Chronicle.

While Texas is not the only conservative-led state to tighten its laws around digital pornography, it "stands alone in its aggressive pursuit of heavy fines and widespread litigation," Bloomberg Law said. And though the Lone Star state's adult entertainment crackdown may be exceptional now, it might not stay that way for long.

A 'honeypot' for hackers

After several rounds of dueling lawsuits and legal maneuvering, the U.S. Fifth Circuit Court of Appeals in March approved Texas' ability to enforce HB1181, arguing that the law serves the government's "legitimate interest" in keeping pornography away from minors and was not an encroachment on users' first amendment rights. Shortly thereafter, Paxton sued two more pornography distribution companies, Multi Media, LLC, and Hammy Media, resulting in a nearly $700,000 settlement with Multi Media, owners of Chaturbate.com, which has since implemented an age verification system. As many experts argue that age verification systems can be "'honeypots' to cyberattackers," Chaturbate now redirects visitors to third-party age verification software" instead, The Houston Chronicle said.

The Fifth Circuit's decision is the "latest in a series" of rulings that "intentionally challenge the application of settled First Amendment principles to online conduct" said Daniel Lyons, a nonresident senior fellow at the right-leaning American Enterprise Institute think tank. Accordingly, it is a "good bet this case" will ultimately end up before the Supreme Court, although the court has declined to block the law for now. And in the meantime, more states are looking to Texas — and Paxton himself — for lessons on how to limit their residents' access to cyberporn.

When Paxton does things 'oftentimes they get more attention'

Since 2022, at least eight states — Arkansas, Indiana, Louisiana, Mississippi, Montana, Texas, Utah and Virginia — have codified age verification restrictions for online porn, with lawmakers offering similar proposals in nearly two dozen more, according to analysis from The Associated Press. But while the conservative-led effort extends well beyond Texas, the "main difference between Texas and the other states is Paxton himself — and Texas' novel strategy placing him in charge of compliance" Bloomberg Law said. While other states with similar laws rely on citizen-led lawsuits, Texas' empowerment of Paxton's office to sue pornography distributors has supercharged the enterprise and inspired other states to "soon sic their attorneys general on adult sites."

As one of the most vocal — and controversial — right-wing lawmakers in the country, Paxton is in a position to do things that oftentimes "get more attention than other attorneys general," said Jonathan Saenz, the president of the conservative Texas Values group, to Bloomberg Law. In Indiana this past winter, lawmakers quickly amended their version of an online age verification bill to grant the state's Attorney General the authority to pursue suits against adult content distributors "because the AG is going to have the tools and the expertise to execute this kind of action if need be" state Sen. Mike Bohacek (R) said to NWI.com. While distributors have largely "called various states' bluff on verification laws enforced by the private suit model" the underlying calculation is "shifting" in states where AGs can levy hefty fines for noncompliance, Bloomberg Law said.