Case: 23-50627 Document: 137-1 Page: 1 Date Filed: 03/07/2024
`
`United States Court of Appeals
`Fifth Circuit
`
`United States Court of Appeals
`for the Fifth Circuit
`____________
`
`FILED
`No. 23-50627
`March 7, 2024
`____________
`
`Lyle W. Cayce
`
`Clerk
`Free Speech Coalition, Incorporated; MG Premium,
`Limited; MG Freesites, Limited; WebGroup Czech
`Republic. a.s.; NKL Associates, s.r.o.; Sonesta
`Technologies, s.r.o.; Sonesta Media, s.r.o.; Yellow
`Production, s.r.o.; Paper Street Media, L.L.C.; Neptune
`Media, L.L.C.; Jane Doe; MediaME, S.R.L.; Midus
`Holdings, Incorporated,
`
`
`Plaintiffs—Appellees,
`
`
`
`versus
`
`
`Ken Paxton, Attorney General, State of Texas,
`
`
`Defendant—Appellant.
`______________________________
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 1:23-CV-917
`______________________________
`
`
`Before Higginbotham, Smith, and Elrod, Circuit Judges.
`Jerry E. Smith, Circuit Judge:
`
`Texas H.B. 11811 was scheduled to go into effect on September 1,
`
`_____________________
`
`1 See Publication or Distribution of Sexual Material Harmful to Minors on an
`
`
`

`

`Case: 23-50627 Document: 137-1 Page: 2 Date Filed: 03/07/2024
`
`No. 23-50627
`
`2023. It imposes new standards on commercial pornographic websites,
`requiring them to verify the age of their visitors and to display health warn-
`ings about the effects of the consumption of pornography. Free Speech Coa-
`lition, Incorporated, an adult industry trade association; several domestic and
`foreign corporations that produce, sell, and host pornography; and one indi-
`vidual adult content creator brought a facial challenge against the enforce-
`ment of H.B. 1181. The day before the law was scheduled to take effect, the
`district court granted plaintiffs’ motion for a preliminary injunction in an
`81-page order. Free Speech Coal., Inc. v. Colmenero, No. 1:23-CV-917,
`2023 WL 5655712, at *30 (W.D. Tex. Aug. 31, 2023). The court concluded
`that: (1) both the age-verification requirement and the health warnings of
`H.B. 1181 likely violate plaintiffs’ First Amendment rights, and (2) as to cer-
`tain plaintiffs, the law likely conflicts with, and thus is preempted by, Section
`230 of the Communications Decency Act, 47 U.S.C. § 230. Then the court
`ruled that plaintiffs had satisfied the other preliminary injunction factors.
`
`Texas filed an emergency appeal, and this court issued an adminis-
`trative stay, ordered expedited briefing, and heard oral argument two weeks
`later. A month after argument, this panel granted Texas’s motion to stay the
`district court’s injunction pending appeal. We now vacate that stay and rule
`on the merits of the preliminary injunction.
`
`First, we vacate the injunction against the age-verification require-
`ment based on Ginsberg v. New York, 390 U.S. 629 (1968), which remains
`binding law, even after Ashcroft v. ACLU (Ashcroft II), 542 U.S. 656 (2004).2
`
`_____________________
`
`Internet Website; Providing a Civil Penalty, 2023 Tex. Sess. Law Serv. Ch. 676
`(H.B. 1181) (codified at Tex. Civ. Prac. & Rem. Code Ann. § 129B.001 et seq.).
`2 See Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 793–94 (2011) (discussing Gins-
`berg’s treatment of “sexual material that would be obscene from the perspective of a
`child”).
`
`2
`
`

`

`Case: 23-50627 Document: 137-1 Page: 3 Date Filed: 03/07/2024
`
`No. 23-50627
`
`The proper standard of review is rational-basis, not strict scrutiny. Applying
`rational-basis review, the age-verification requirement is rationally related to
`the government’s legitimate interest in preventing minors’ access to pornog-
`raphy. Therefore, the age-verification requirement does not violate the First
`Amendment. Further, Section 230 does not preempt H.B. 1181. So, the dis-
`trict court erred by enjoining the age-verification requirement.
`
`Second, we affirm the injunction in regard to the health warnings. The
`district court properly applied National Institute of Family & Life Advocates v.
`Becerra (NIFLA), 585 U.S. 755, 766 (2018), and ruled that H.B. 1181 uncon-
`stitutionally compelled plaintiffs’ speech.
`
`I.
`H.B. 1181 regulates only certain entities, specifically, “commercial
`entit[ies] that knowingly and intentionally publish[] or distribute[] material
`on an Internet website, including a social media platform, more than one-
`third of which is sexual material harmful to minors.” § 129B.002(a). Those
`regulated entities must take two actions. First, they must “use reasonable
`age verification methods” to limit their material to adults. Id. Second, they
`must “display notices on the landing page of the website and on all advertise-
`ments for that website in 14-point font or larger.”
` § 129B.004(1)
`(cleaned up).
`
`The newly enacted statute defines sexual material harmful to minors
`by adding “with respect to minors” or “for minors,” where relevant, to the
`well-established Miller test for obscenity. See Miller v. California, 413 U.S.
`15, 24 (1973).3 It also mimics the language of 47 U.S.C. § 231, which the
`
`_____________________
`
`3 The law defines “[s]exual material harmful to minors” as material that
`(A) the average person applying contemporary community standards
`
`
`3
`
`

`

`Case: 23-50627 Document: 137-1 Page: 4 Date Filed: 03/07/2024
`
`No. 23-50627
`
`Supreme Court reviewed in Ashcroft II.4
`
`Regulated entities may choose their preferred “reasonable age verifi-
`cation methods,” including by outsourcing the process to a third party.
`§§ 129B.002–129B.003. The options include the use of government-issued
`identification. See § 129B.003(b)(2)(A). But the websites may alternatively
`require digital identification or may use other “commercially reasonable
`method[s].” § 129B.003(b)(1), (2)(B). Further, whoever performs the veri-
`fication may not retain any of the individual’s identifying information.
`§ 129B.002(b).
`
`The websites must also show three health warnings on their landing
`pages and advertisements. § 129B.004(1).5 Additionally, the entities must
`_____________________
`
`would find, taking the material as a whole and with respect to minors, is
`designed to appeal to or pander to the prurient interest;
`(B) in a manner patently offensive with respect to minors, exploits, is
`devoted to, or primarily consists of descriptions of actual, simulated, or
`animated displays or depictions of [explicitly described sexual material];
`and
`(C) taken as a whole lacks serious literary, artistic, political, or scientific
`value for minors.
`§ 129B.001(6).
`4 See Omnibus Cons. & Emergency Supplemental Appropriations Act, 1999, Pub.
`
`L. No. 105-277, §§ 1401–06 (1998) (also referred to as the “Child Online Protection Act,”
`hereinafter “COPA”).
`5 The warnings read,
`TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornogra-
`phy is potentially biologically addictive, is proven to harm human brain
`development, desensitizes brain reward circuits, increases conditioned
`responses, and weakens brain function.
`TEXAS HEALTH AND HUMAN SERVICES WARNING: Exposure
`to this content is associated with low self-esteem and body image, eating
`disorders, impaired brain development, and other emotional and mental
`
`
`4
`
`

`

`Case: 23-50627 Document: 137-1 Page: 5 Date Filed: 03/07/2024
`
`No. 23-50627
`
`place a notice at the bottom of every webpage. § 129B.004(2).6
`
`Should an entity either refuse or fail to comply with H.B. 1181, the
`Attorney General may seek injunctive relief and civil penalties of up to
`$10,000 for each day a company lacks age-verification; up to $10,000 for
`each instance of improper retention of identifying information; and up to
`$250,000 for a minor’s accessing of sexual material harmful to minors.
`§ 129B.006.7
`
`Shortly after Texas enacted H.B. 1181 and before it took effect, plain-
`tiffs sued. They claimed, inter alia, H.B. 1181 impermissibly encroaches on
`their First Amendment rights and, for some plaintiffs, conflicts with
`
`_____________________
`
`illnesses.
`TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornogra-
`phy increases the demand for prostitution, child exploitation, and child
`pornography.
`§ 129B.004(1) (internal quotation marks omitted).
`6 That notice reads,
`U.S. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES
`ADMINISTRATION HELPLINE:
`1-800-662-HELP (4357)
`THIS HELPLINE IS A FREE, CONFIDENTIAL INFORMATION
`SERVICE (IN ENGLISH OR SPANISH) OPEN 24 HOURS PER DAY,
`FOR INDIVIDUALS AND FAMILY MEMBERS FACING MENTAL
`HEALTH OR SUBSTANCE USE DISORDERS. THE SERVICE
`PROVIDES REFERRAL TO LOCAL TREATMENT FACILITIES,
`SUPPORT GROUPS, AND COMMUNITY-BASED
`ORGANIZATIONS
`
`§ 129B.004(2).
`7 Those penalties are strictly civil. This law does not criminalize the publication or
`distribution of obscenity. Another, longstanding Texas law already does so. See Tex.
`Penal Code Ann. §§ 43.21–43.23. Texas has not attempted to regulate plaintiffs under
`those laws, despite its apparent ability to do so.
`
`5
`
`

`

`Case: 23-50627 Document: 137-1 Page: 6 Date Filed: 03/07/2024
`
`No. 23-50627
`
`Section 230.
`
`The district court found that: (1) all plaintiffs have standing and that
`sovereign immunity does not bar the claims because Ex parte Young creates a
`carveout for suits against state officials where the plaintiffs seek prospective
`relief for violation of constitutional rights8; (2) the age-verification require-
`ment is subject to and fails strict scrutiny under Ashcroft II and Reno9; (3) the
`health warnings compel speech, so they are subject to, and fail, strict scru-
`tiny; and (4) Section 230 conflicts with and therefore preempts H.B. 1181 as
`to certain plaintiffs. Thus, the district court believed that plaintiffs were
`likely to succeed on the merits of their claim and to suffer irreparable harm
`and that the balance of harms and public interest favored a preliminary
`injunction under Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). So, the court
`issued a pre-enforcement preliminary injunction. Texas now appeals.
`
`II.
`We review preliminary injunctions for abuse of discretion. Ashcroft II,
`542 U.S. at 664. But such “a decision grounded in erroneous legal principles
`is reviewed de novo.” Mock v. Garland, 75 F.4th 563, 577 (5th Cir. 2023)
`(quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)).
`
`Preliminary injunctions are “extraordinary remed[ies] that may only
`be awarded upon a clear showing that the plaintiff is entitled to such relief.”10
`The moving party must show
`(1) a substantial likelihood of success on the merits, (2) a sub-
`stantial threat of irreparable injury if the injunction is not is-
`sued, (3) that the threatened injury if the injunction is denied
`_____________________
`
`8 See Ex parte Young, 209 U.S. 123, 159–60 (1908).
`9 Reno v. ACLU, 521 U.S. 844, 864–68, 874 (1997).
`10 NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 447 (5th Cir.) (quoting NRDC,
`555 U.S. at 22), cert. granted, 144 S. Ct. 275 (2023).
`
`6
`
`

`

`Case: 23-50627 Document: 137-1 Page: 7 Date Filed: 03/07/2024
`
`No. 23-50627
`
`outweighs any harm that will result if the injunction is granted,
`and (4) that the grant of an injunction will not disserve the pub-
`lic interest.
`Mock, 75 F.3d at 577 (quoting Byrum, 566 F.3d at 445). And “[t]he govern-
`ment’s and the public’s interests merge when the government is a party.” Id.
`(citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
`
`The key issue is whether the district court properly found a substantial
`
`likelihood of success on the merits. So, we turn to that first.
`
`III.
`A.
`H.B. 1181’s age-verification requirements are subject to rational-basis
`review. Applying that standard, we uphold them as constitutional.
`
`1.
`“The State has an interest to protect the welfare of children and to see
`that they are safeguarded from abuses.” Ginsberg, 390 U.S. at 640 (cleaned
`up).11 For that reason, regulations of the distribution to minors of materials
`obscene for minors are subject only to rational-basis review. See id. at 641; see
`also Ent. Merchs., 564 U.S. at 793–94 (quoting Ginsberg, 390 U.S. at 641).
`
`Ginsberg dealt with a First Amendment challenge to a New York law
`criminalizing the sale of so-called “girlie” picture magazines and applied the
`then-relevant Memoirs obscenity standard, modified for children.12 The
`Court recognized that the magazines at issue “are not obscene for adults”
`
`_____________________
`
`11 Texas is not alone asserting this interest. Seven other states—Arkansas, Loui-
`siana, Mississippi, Montana, North Carolina, Utah, and Virginia—have recently passed
`similar laws.
`12 Ginsberg, 390 U.S. at 632–35 (citing A Book Named ‘John Cleland’s Memoirs of a
`Woman of Pleasure’ v. Att’y Gen. of Mass. (Memoirs), 383 U.S. 413, 418 (1966) (plurality
`opinion) (test altered by Miller, 413 U.S. at 23–24)).
`
`7
`
`

`

`Case: 23-50627 Document: 137-1 Page: 8 Date Filed: 03/07/2024
`
`No. 23-50627
`
`but ruled that, because the seller could still stock and sell them to adults, But-
`ler v. Michigan did not apply. Ginsberg, 390 U.S. at 634–35 (citing Butler,
`352 U.S. 380, 382–84 (1957) (holding that the state cannot “reduce the adult
`population of Michigan to reading only what is fit for children”)). Instead,
`New York could criminalize the selling of those magazines to children
`because “it was not irrational for the legislature to find that exposure to
`material condemned by the state is harmful to minors.” Id. at 641.
`
`The decision in Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975),
`reaffirmed a robust reading of Ginsberg’s principle: “It is well settled that a
`State or municipality can adopt more stringent controls on communicative
`materials available to youths than on those available to adults.” Id. at 212
`(citing Ginsberg, 390 U.S. 629). Crucially, the material regulated by the
`ordinance in Erznoznik was available to both youths and adults.13 “Assuming
`the ordinance [was] aimed at prohibiting youths from viewing the films,” the
`Court did not take issue with the burdens that enforcing the regulation would
`have on adults. Id. at 213. Instead, the Court questioned the regulation’s
`targeting of material, noting that “it sweepingly forbids display of all films
`containing any uncovered buttocks or breasts, irrespective of context or
`
`_____________________
`
`13 The ordinance in question read,
`330.313 Drive-In Theaters, Films Visible from Public Streets or Public
`Places. It shall be unlawful and it is hereby declared a public nuisance for
`any ticket seller, ticket taker, usher, motion picture projection machine
`operator, manager, owner, or any other person connected with or em-
`ployed by any drive-in theater in the City to exhibit, or aid or assist in ex-
`hibiting, any motion picture, slide, or other exhibit in which the human
`male or female bare buttocks, human female bare breasts, or human bare
`pubic areas are shown, if such motion picture, slide, or other exhibit is
`visible from any public street or public place. Violation of this section shall
`be punishable as a Class C offense.
`Erznoznik, 422 U.S. at 206–07 (citations and internal quotation marks omitted).
`
`8
`
`

`

`Case: 23-50627 Document: 137-1 Page: 9 Date Filed: 03/07/2024
`
`No. 23-50627
`
`pervasiveness. Thus it would bar a film containing a picture of a baby’s
`buttocks . . . .” Id.
`
`But that is no issue here; H.B. 1181 is restricted to material obscene
`for minors. Erznoznik suggests that if—like H.B. 1181—Jacksonville’s ordin-
`ance had been tailored to material obscene for minors, the Court stood ready
`to accept Jacksonville’s contention that “the . . . ordinance [was] a reasona-
`ble means of protecting minors from this type of visual influence.” See id.
`at 212.
`
`Ginsberg’s central holding—that regulation of the distribution to
`minors of speech obscene for minors is subject only to rational-basis review—
`is good law and binds this court today. And not only this court. Years after
`Reno and Ashcroft II, the Supreme Court, to avoid rational-basis review, felt
`required to distinguish Ginsberg in Entertainment Merchants, 564 U.S. at 794.
`As that Court described it, Ginsberg “approved a prohibition on the sale to
`minors of sexual material that would be obscene from the perspective of a
`child” because that proscription “‘was not irrational.’” Id. at 793–94 (quot-
`ing Ginsberg, 390 U.S. at 641). But the material at issue in Entertainment
`Merchants was violent, not sexual—and Ginsberg set out a lower standard
`only for regulation of certain kinds of sexual content. Further, the Court and
`its individual Justices have cited Ginsberg multiple other times after Reno and
`Ashcroft II, albeit for different propositions.14
`
`In an attempt to distinguish Ginsberg, Plaintiffs pick at the factual
`dissimilarities between the world of Ginsberg and our world. They note that
`“the Supreme Court recognized that source-based restrictions on Internet
`
`_____________________
`
`14 See Counterman v. Colorado, 600 U.S. 66, 111 (2023) (Barrett, J., dissenting);
`
`Iancu v. Brunetti, 139 S. Ct. 2294, 2307 (2019) (Breyer, J., concurring in part); Elonis v.
`United States, 575 U.S. 723, 741 (2015); FCC v. Fox TV Stations, Inc., 556 U.S. 502, 519
`(2009).
`
`9
`
`

`

`Case: 23-50627 Document: 137-1 Page: 10 Date Filed: 03/07/2024
`
`No. 23-50627
`
`expression raise concerns categorically different from those at issue in cases
`such as Ginsberg, given the nature of cyberspace and the breadth and
`invasiveness of speech burdens in this context.”15 Also, plaintiffs posit that
`in-person age-verification creates fewer risks to privacy because “[m]any
`adults are never even asked for their identification in person; their appear-
`ance alone suffices.”16 We disagree with those analyses.
`
`First, as plaintiffs admit, the statute at issue in Ginsberg necessarily
`implicated, and intruded upon, the privacy of those adults seeking to pur-
`chase “girlie magazines.” But the Court still applied rational-basis scrutiny.
`
`Second, the age-verification requirements do not impose any sort of
`“categorically different” burden on adults. H.B. 1181 provides that a pur-
`veyor of pornography can use “digital verification,” “government-issued
`identification,” or other “commercially
`reasonable method[s].”
`§ 129B.003(b). That allows for at least three concrete means of age-
`verification: (1) government ID, (2) facial appearance, or (3) some other
`available information used to infer the user’s age. At least one of those
`options will have no more impact on privacy than will in-person age
`verification à la Ginsberg. Moreover, H.B. 1181 punishes entities $10,000 for
`each instance of retention of identifying information, possibly yielding
`heavier penalties than would the failure to age-verify.17
`
`Third, even were there a gap in privacy concerns as large as plaintiffs
`suggest, we decline to adopt their notion that such a gap matters. In short,
`
`_____________________
`
`15 Though plaintiffs’ example of this supposed recognition is Reno, which is readily
`distinguishable. See infra.
`16 Of course, one of the allegedly commercially reasonable methods of age-
`verification confirms age through algorithmic analysis of the user’s appearance.
`17 In that respect, H.B. 1181 is more privacy-protective than was the statute in Gins-
`berg, which provided no analogous provision. Ginsberg, 390 U.S. at 645–47.
`
`10
`
`

`

`Case: 23-50627 Document: 137-1 Page: 11 Date Filed: 03/07/2024
`
`No. 23-50627
`
`no binding precedent compels us to depart from Ginsberg on privacy grounds,
`and we decline to do so.
`
`Finally, the Supreme Court itself has declined to adopt such a distinc-
`tion. If the differences between the contemporary world of the Internet and
`the 1960’s world of in-person interaction were sufficient to distinguish Gins-
`berg, the Court would have noted as much in Reno. Yet none of the four
`“important respects” the Court notes distinguishing the statute in Reno from
`the statute in Ginsberg references the Internet at all. See Reno, 521 U.S.
`at 865–66.18
`
`_____________________
`
`18 Plaintiffs also contend that Ginsberg was a challenge based on the speech rights
`of minors rather than the speech rights of adults—and that this distinction matters. They
`attempt to distinguish Entertainment Merchants in the same way. That distinction fails for
`several reasons.
`First, it misrepresents what was before the Court in Ginsberg. Ginsberg, unlike
`Ashcroft II, dealt not with a narrow challenge under an assumed tier of scrutiny. Instead,
`the challenger brought an exceedingly broad challenge framing the statute as
`unconstitutionally “restrain[ing] the distribution of literature.” Brief for Appellant, Gins-
`berg, 390 U.S. 629 (No. 47), 1967 WL 113634, at *9–10. And the Court construed the chal-
`lenge in the broadest way possible: “This case presents the question of the constitutionality
`on its face of a New York criminal obscenity statute . . . .” Ginsberg, 390 U.S. at 631 (first
`line). But most importantly, the Court in Ginsberg did have before it the appropriate level
`of scrutiny for a law of this sort, and it concluded that rational-basis review sufficed.
`The same cannot be said for Ashcroft II. We will not retcon Ginsberg’s central hold-
`ing, sixty-five years later, to narrow artificially what the Court held: Regulation of the dis-
`tribution to minors of content obscene for minors is subject only to rational-basis review.
`Second, as suggested at various points in this opinion, laws such as the statute in
`Ginsberg necessarily affect, to some degree, adults’ access to the regulated material. A law
`that requires by its nature sale only to adults requires (prudent) venders to verify the age of
`their customers. Plaintiffs recognize as much when they try to distinguish Ginsberg. That
`H.B. 1181 similarly affects adults’ access to regulated material does not place it beyond
`Ginsberg’s shelter.
`Finally, Entertainment Merchants’s use of Ginsberg undercuts plaintiffs’ reading.
`Entertainment Merchants held that “[e]ven where the protection of children is the object,
`
`
`11
`
`

`

`Case: 23-50627 Document: 137-1 Page: 12 Date Filed: 03/07/2024
`
`No. 23-50627
`
`Instead of following Ginsberg, plaintiffs point to two cases that address
`laws like H.B. 1181 but that applied strict scrutiny: Reno and Ashcroft II. The
`former is readily distinguishable. There, the Court reviewed and enjoined
`the Communications Decency Act of 1996 (“CDA”). Reno, 521 U.S. at 849.
`In doing so, it recognized four “important respects” in which the CDA and
`the statute in Ginsberg differed. Id. at 865. Most of those same differences
`exist between the CDA and H.B. 1181—but those are not the only differences
`between the two laws; they include the following: (1) The CDA included
`prohibitions on non-sexual material; H.B. 1181 does not. Id. at 873.19 (2) Par-
`ental participation or consent could not circumvent the CDA; it can circum-
`vent H.B. 1181. Id. at 865. (3) The CDA did not specifically define the pro-
`scribed material; H.B. 1181 does. Id. at 873. (4) The CDA had no limitation
`to commercial activity; H.B. 1181 covers only commercial entities. Id.
`
`_____________________
`
`the constitutional limits on governmental action apply.” 564 U.S. at 804–05. But the
`Court distinguished Ginsberg because the content of the material regulated in Ginsberg was
`sexual in nature. Id. at 793. Thus, Entertainment Merchants helps confirm our understand-
`ing that within “the constitutional limits on governmental action” that apply where “pro-
`tection of children” is the “object” of a regulation, there is ample room for regulation,
`subject to rational-basis review, of the distribution of materials obscene for minors to minors.
`Id. at 804–05.
`19 The Court specifically referred to the CDA’s language on “excretory activities.”
`Reno, 521 U.S. at 846. A keen reader will note that H.B. 1181 also refers to excretion, but
`that reference to “excretory functions” is fairly read to mean something else. H.B. 1181 in
`part defines “sexual material harmful to minors” as “excretory functions . . . or any other
`sexual act.” § 129B.001(6)(B)(iii). In light of noscitur a sociis, “excretory functions” in
`H.B. 1181 probably refers to excretory functions as sexual acts (which are too crude to
`describe here). By contrast, the CDA set up “excretory activities” in opposition to “sexual
`. . . activities.” See Reno, 521 U.S. at 860 (The CDA reads “sexual or excretory activities.”)
`Moreover, the term “excretory” in H.B. 1181 appears in a definition of “sexual material
`harmful to minors,” § 129B.001(6), but the term “excretory” in the CDA works to define
`“offensive” material, see Reno, 521 U.S. at 873. Moreover, H.B. 1181 covers only materials
`“designed to appeal to or pander to the prurient interest.” § 129B.001(6)(A) (emphasis
`added). See infra note 22. This is but one of multiple serious distinctions between the CDA
`and H.B. 1181.
`
`12
`
`

`

`Case: 23-50627 Document: 137-1 Page: 13 Date Filed: 03/07/2024
`
`No. 23-50627
`
`at 865.20 (5) In enjoining the CDA, the Court relied at least in part on “the
`absence of a viable age verification process,” but that process is the central
`requirement of H.B. 1181. Id. at 876. Finally, (6) the Court’s decision was
`fundamentally bound up in the rudimentary “existing” technology of
`twenty-seven years ago, but technology has dramatically developed. Id. at
`876–77.
`
`Indeed, only one distinction appears to work against our analysis here.
`The Court noted that “the New York statute defined a minor as a person
`under the age of 17, whereas the CDA, in applying to all those under 18 years,
`includes an additional year of those nearest majority.” Id. at 865–66. Given
`that this is the sole mention of that distinction, and that the rest of the dis-
`tinctions still align with H.B. 1181, it beggars belief that the Supreme Court
`meant that to be an essential component in triggering the Ginsberg frame-
`work. That is especially true where the Court relied principally on the
`CDA’s overbreadth and lack of adherence to the Miller standard. See id.
`at 873.21
`
`Nor does other seemingly contradictory language in Reno impede our
`analysis. For example, Reno says that the interest in protecting children, for
`which it cites Ginsberg, “does not justify an unnecessarily broad suppression
`of speech addressed to adults.” Id. at 875. As noted above, the reach of the
`_____________________
`
`20 Notably, the Court emphasized that the statute in Ginsberg “applied only to
`commercial transactions.” Reno, 521 U.S. at 865. Texas similarly limited H.B. 1181 to
`“commercial entit[ies].” § 129B.002(a). We recognize that language is not one-to-one,
`but the distinction is of no import for two reasons. First, we are sufficiently convinced that
`the activity here is a commercial activity. See infra Section III.B.i. Second, the CDA
`contained no limitation to commerce at all. In that sense, H.B. 1181 tracks the law in Gins-
`berg much more than it does the CDA.
`21 We do not suggest that each of the distinctions here is necessary for a law to
`receive rational-basis review under Ginsberg instead of strict scrutiny under Reno. We list
`them in full merely to illustrate how different the CDA is from H.B. 1181.
`
`13
`
`

`

`Case: 23-50627 Document: 137-1 Page: 14 Date Filed: 03/07/2024
`
`No. 23-50627
`
`CDA was well beyond Ginsberg’s safe harbor and included even non-sexual
`material.22 Moreover, Reno makes that point, referring to Sable Communica-
`tions, Inc. v. FCC, 492 U.S. 115 (1989). See Reno, 521 U.S. at 875. Sable
`addressed “an outright ban on indecent as well as obscene interstate com-
`mercial telephone messages.” 492 U.S. at 117. That too is well outside Gins-
`berg’s safe harbor for regulations on distribution to minors of material obscene
`for minors.23
`
`On the other hand, Ashcroft II supplies plaintiffs’ best ammunition
`against H.B. 1181. After all, despite Texas’s protestations, H.B. 1181 is very
`similar to COPA. Sure, COPA was criminal, and H.B. 1181 is civil. And
`COPA allowed age-verification as an affirmative defense, yet H.B. 1181
`requires it upfront. But those changes do not affect our analyses here.24 Ash-
`croft II, finding that COPA probably failed the narrow tailoring component of
`strict scrutiny, sent the case back down for trial. 542 U.S. at 673. One might
`read Ashcroft II for the proposition that COPA (and consequently H.B. 1181)
`
`_____________________
`
`22 The dissent complains: “Like the CDA, H.B. 1181 regulates more than just
`‘sexual conduct.’” That is plainly not so. Inter alia, H.B. 1181 applies only to matter
`“designed to appeal to or pander to the prurient interest.” § 129B.001(6)(A) (emphasis
`added). In this context, “prurient” plainly limits the statute’s applicability to content
`designed to excite sexual arousal. See Miller, 413 U.S. at 24. This contrasts sharply with
`the CDA’s bar on plainly non-sexual activities. See supra note 19.
`23 Sable is distinct for two reasons. First, like the CDA, the statute in Sable swept
`in a much larger swath of speech than the speech targeted here. See Sable, 492 U.S. at 117.
`Second, Sable dealt with an outright ban. Plaintiffs repeatedly emphasize that “content-
`based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United
`States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 812 (2000). But, read in context, that
`proposition is not as broad as it seems. Indeed, Playboy seems to have cited favorably Gins-
`berg’s narrower approach when it discussed Sable. See id. at 814 (comparing cases where
`bans were struck down to cases where restrictions were upheld).
`24 That is not to say that such distinctions could never matter.
`
`14
`
`

`

`Case: 23-50627 Document: 137-1 Page: 15 Date Filed: 03/07/2024
`
`No. 23-50627
`
`fail strict scrutiny. We can even assume that here.25
`
`But that assumption does not end our analysis. Though Ashcroft II
`concluded that COPA would fail strict scrutiny, it contains startling omis-
`sions. Why no discussion of rational-basis review under Ginsberg? And why
`no analysis of intermediate scrutiny under Renton v. Playtime Theatres, Inc.,
`475 U.S. 41 (1986)? We find those omissions particularly surprising consid-
`ering that the Court in Reno felt the need to distinguish those at length. See
`Reno, 521 U.S. at 865–68.
`
`We see only one answer and therefore only one way to read Ashcroft II
`consistently with Ginsberg: Ashcroft II did not rule on the appropriate tier of
`scrutiny for COPA. It merely ruled on the issue the parties presented:
`whether COPA would survive strict scrutiny. Indeed, the petitioner’s brief
`in Ashcroft II made two claims:
`
`I. COPA is narrowly tailored to further the government’s com-
`pelling interest in protecting minors from harmful material on
`the World Wide Web.
`
`. . .
`
`II. The court of appeals erred in holding that COPA is not nar-
`rowly tailored.
`
`Brief for Pet’r, Ashcroft II, 542 U.S. 656 (2004) (No. 03-218), 2003 WL
`22970843, at *iii. In other words, the petitioners did not challenge the
`applicable standard of review. Because that is not a jurisdictional argument,
`the Court did not have to correct them sua sponte.26
`
`_____________________
`
`25 To be clear: Although we comment on the facial similarities between COPA and
`H.B. 1181, we do not mean to express any opinion on how H.B. 1181 would fare under any
`other tier of scrutiny.
`26 This explains the need for the Third Circuit to clarify, in the follow-on proceed-
`
`
`15
`
`

`

`Case: 23-50627 Document: 137-1 Page: 16 Date Filed: 03/07/2024
`
`No. 23-50627
`
`It is true that, in passing and without reference to Ginsberg, the Court
`said, “[w]hen plaintiffs challenge a content-based speech restriction, the
`Government has the burden to prove that the proposed alternatives will not
`be as effective as the challenged statute.” Ashcroft II, 542 U.S. at 657. But
`that is the closest that opinion comes to ruling on the appropriate standard of
`review.27 Given our circuit’s respect for the Court’s dicta, we cannot brush
`that comment aside as such; yet, it is inapposite for two reasons: First, read
`in context, it is most readily seen as an explanation of how strict scrutiny
`works generally and not as a clear articulation of its appropriateness for
`COPA. Second, and more importantly, it is inconsistent with the proposition
`that Ginsberg remains good law.28
`
`G