Texas passed an age verification law that requires proof that a visitor is an adult to access pornographic websites.
Age Verification Law in Texas
House Bill 1181 was signed into law on June 12, 2023, and was slated to into effect on September 1, 2023. The law requires adult websites to use “reasonable age verification methods” to make sure a person accessing their website is at least 18 years old.
The verification system could be based on government-issued identification or a “commercially reasonable method that relies on public or private transactional data” to verify the age of the visitor. The law further required the websites to post a dubious warning that pornography is addictive, that exposure to pornography could result in body image and mental health issues, and increase the demand for child exploitation.
Age Verification Law Challenged
A challenge to the law was successful, at least initially. The law was challenged in federal court by the Free Speech Coalition, which is a nonprofit trade association made up of performers, producers, distributors, and retailers of adult content. The Coalition is supported adult websites such as PornHub and Xnxx. The basis for the challenge was the law was overboard and failed the strict scrutiny test applied to free speech. The federal district court granted the injunction and prevented the Texas Attorney General from enforcing the newly enacted law.
The Age Verification Law in Texas is Currently Enforceable
Then on November 14, 2023 the United States Fifth Circuit vacated the injunction. In other words, the court of appeals disagreed with the district court so Texas can now enforce the new law. The penalties for distributing adult content without complying with this law is a fine of up to $10,000 daily for failing to verify the age of users and fine of up to $250,000 per day if at least one child is exposed to pornographic material.
In some states, some sites stopped serving content to users rather than forcing visitors to verify their identity and provide proof of their age. For example, Pornhub has blocked visitors in North Carolina, Montana, and Utah.
How Easy is it to Avoid Age Verification?
How effective is the feel-good legislation? Engadget is reporting searches for VPNs, which obfuscate a visitor’s location, are suddenly on the rise where laws similar to this one are being enforced.
Is pornography legal in Texas?
It is generally legal for an adult in Texas to watch pornography depicting consenting adults. There are, however, instances where pornography can become illegal:
Child Pornography (Penal Code 43.26)
In Texas, it’s illegal to possess, produce, distribute, or promote any visual material that depicts a child younger than 18 years engaged in sexual conduct. The child pornography law is comprehensive and includes photographs, videos, digital images, and any other types of visual representation. Convictions under this statute can lead to severe penalties, including imprisonment and mandatory registration as a sex offender.
AI-Generated Pornography Depicting a Minor (Penal Code 43.26)
With the advent of AI technology, it’s become possible to create realistic images or videos that did not originally exist. If AI generates pornographic content that includes the face, likeness, or other distinguishing features of a real child, it falls under the same category as traditional child pornography under Penal Code 43.26 and is treated with equal severity.
AI-Generated Pornography Using Child Images (Penal Code Section 43.261)
Texas law specifically addresses the issue of AI-generated pornography that utilizes the image of a child under 18, even if the final content doesn’t directly depict that child. This inclusion ensures that the law evolves with technology, prohibiting the exploitation of minors in all forms, even in digitally altered or AI-generated content.
Revenge Pornography (Penal Code Section 21.16)
Unlawful disclosure of intimate visual material, commonly known as revenge porn, involves distributing intimate images or videos of someone without their consent, typically with the intent to harm or harass. In Texas, this act is a violation of privacy and dignity and is punishable by law. The statute covers a range of conduct and includes protections for victims, such as the ability to seek damages.
Distributing Harmful Material to a Minor (Penal Code 43.24)
It’s illegal in Texas to sell, distribute, or display harmful material to a minor. This law is designed to protect minors from exposure to explicit content that is deemed inappropriate for their age. Violations of this statute can lead to criminal charges, emphasizing the responsibility of individuals and entities in controlling access to such material.
Sexting Between Minors
While it’s less severe than other sexual offenses, sexting between minors is still a concern in Texas and is classified as a Class C misdemeanor. The state recognizes the need to address the behavior without imposing the harsh penalties associated with adult sex offenses. However, it’s crucial to approach these cases with sensitivity and an understanding of the broader legal and social context.
Obscene Display or Distribution (Penal Code 43.23)
Texas law prohibits the intentional or reckless display or distribution of obscene materials in a manner where others might be offended or alarmed. This statute reflects community standards regarding public decency and the protection of individuals from unwanted exposure to explicit content. Conviction can lead to a Class C misdemeanor charge, underscoring the importance of respecting public norms.
Sexual Performance by a Child (Penal Code Section 43.25)
Engaging a child under 18 in a sexual performance, or producing, directing, or promoting such material, is a grave offense in Texas. This law targets the exploitation of minors at a fundamental level, aiming to protect children from abuse and involvement in the adult entertainment industry. Violations can lead to significant legal consequences, including lengthy prison sentences and mandatory sex offender registration.
If you’ve been charged with a pornography-related charge in North Texas, give us a call at (817) 203-2220. We have a track record of success in state and federal court.