When censors and philistines go after books or films or any media that they don’t like, there’s often quick and universal backlash. To avoid controversy, the latest Republican target for attacks on freedom of speech is much more insidious because it’s an art form that polite company might get squeamish about defending.
Porn.
It’s already technically illegal to produce porn in Texas, as being paid for sexual conduct is against the state’s prostitution laws. However, enforcement has been negligible, and there’s a long-running joke in the industry that all porn made in Texas is actually a product of Louisiana.
But the last session of the Texas Legislature saw a new law that cracked down on watching erotica online, whether it was produced in the Lone Star State or not. In 2023, Texas lawbooks added House Bill 1181 by Rep. Matt Shaheen, R-Plano. The law requires any website where over a third of the content is sexual to require digital age verification of all users: Failure to comply means a $10,000-per-day fine.
The purpose, as laid out in the bill’s title, is to restrict “publication or distribution of sexual material harmful to minors on an Internet website.” However, for context, Shaheen played the same Helen Lovejoy “Won’t someone think of the children?” card while pushing Senate Bill 12, the state’s attempt to ban the ancient theatrical art form of drag.
HB 1181 passed with zero opposition in the House, 141-0, before heading to the Senate where it was approved 31-0 by voice vote. It was sponsored in the upper chamber by Sen. Angela Paxton, R-McKinney, and if you’re wondering why you know that name, it may be familiar from when she refused to recuse herself from the impeachment trial of her husband, Attorney General Ken Paxton, which centered around taking bribes related to his affair with a former Republican staffer. Now he is responsible for defending the porn law before the U.S. Supreme Court.
The law is being challenged in a lawsuit filed by adult entertainment industry body the Free Speech Coalition, and Paxton already has a loss and a win. On Sept. 1, 2023 – the day the law took effect – U.S. District Judge David Alan Ezra ruled it unconstitutional, saying that it was overbroad, vague, and violated free speech rights by forcing websites to carry a warning about porn addiction that is based on little research. Moreover, he warned that the law was a slippery slope when it came to controversial but legal speech as it forced people to verify their identity by using photo IDs like driver’s licenses. Not only would that discriminate against the 15 million adult Americans who do not have such a license, and the 2 million with no photo ID, Ezra warned that “by verifying information through government identification, the law will allow the government to peer into the most intimate and personal aspects of people’s lives.”
Inevitably, Paxton’s team appealed to the reliably reactionary 5th Circuit Court of Appeals, which lifted Ezra’s hold on the law. Now the case is with SCOTUS, which initially rejected a request to reinstate Ezra’s original ruling but instead decided to take up the Free Speech Coalition’s appeal against the 5th Circuit’s ruling. They held their hearing on Jan. 15, and their ruling is expected by July – deciding the fate of HB 1811 and of over a dozen similar state laws nationwide.
Has HB 1811 really restricted porn in Texas? Well, any Texan with a VPN service can simply pretend to be out-of-state to get around any age verification request. That is, if a website even requires one, as many have simply ignored the law.
However, Aylo, the Canadian firm whose portfolio includes Pornhub, RedTube, and YouPorn, voluntarily responded by pulling their services completely from Texas. Anyone visiting their pages from within the state will be presented with a long statement that while the company is in no way opposed to age verification, the system laid out in HB 1811 does nothing to protect children, restricts adults from accessing constitutionally protected free speech, and pushes users to noncompliant websites that, unlike Aylo’s brands, do not work with anti-trafficking and anti-abuse groups to track down and remove illegal content. (Even though their sites are not available here, Paxton is still suing Aylo, claiming they are not in compliance – which means, if he wins, Paxton may force their return and bring more porn to Texas.)
The adult entertainment industry is not advocating for an outright ban on age verification; instead, they propose basically reversing the current process. Rather than adults having to hand over their personal information, they advocate for a device-based system, where age verification is built into the software of a user’s phone, laptop, tablet, or smart TV. Legislation requiring exactly that was just passed in North Dakota, and in a statement, Free Speech Coalition Executive Director Alison Boden praised the bill, saying that it gives states and online adult entertainment companies “the tools to ensure that minors cannot access their content without sacrificing the privacy of adults.”
This article appears in February 14 • 2025.