Seventh Circuit Allows Indiana’s Controversial Age Verification Law, For Now

The U.S. Seventh Circuit Court of Appeals has allowed Indiana’s age verification law to go into effect — even as the Supreme Court has suggested a similar law in Texas might be unconstitutional. The Seventh Circuit panel handed down this ruling, letting the law go into effect just weeks after the U.S. Supreme Court decided to take up a case challenging Texas’s nearly identical age verification law.

The high court just granted cert in that case, Free Speech Coalition et al v. Paxton. Free Speech Coalition (FSC), the trade group representing the adult content industry, sued Texas Attorney General Ken Paxton in a bid to block Texas’ HB 1181 law, which mandated age verification for adult content sites.

That law is quite similar to the one Indiana passed. In the Texas case, a split panel at the Fifth Circuit found HB 1181 to be constitutional, despite the Texas federal district court ruling that existing precedent made it clear that age verification mandates were unconstitutional. The Supreme Court agreed to review the 5th Circuit’s decision allowing the law to go into effect, but in the process they declined to block HB 1181 while litigation played out.

The ruling allowing the Indiana’s law to go into effect is quite peculiar. FSC sued the state of Indiana to block enforcement of Senate Bill (SB) 17, their age verification law. Judge Richard L. Young for the Southern District of Indiana ruled SB 17 “facially” unconstitutional and issued a preliminary injunction for the plaintiffs, blocking the law from taking effect. This ruling followed on many other rulings around the country rejecting age verification mandates as unconstitutional.

Indiana Attorney General Todd Rokita appealed the injunction to the Seventh Circuit. There, the majority opinion deferred to the Supreme Court’s allowance of Texas HB 1181 to stay in effect through the course of FSC v. Paxton as justification for the Indiana law to be enforced.

In other words, Indiana should be able to enforce its own law as well because SCOTUS is allowing Texas to enforce its law for now. The judges did this as a means to maintain “judicial efficiency.” They also put the case regarding the Indiana law on hold until the Supreme Court rules on Texas’ law.

While the judges concurred on staying the injunction against SB 17, Seventh Circuit Judge Illana D. Rovner dissented in part. Judge Rovner wasn’t convinced by Indiana’s argument that it was in the state’s interest to enforce the law, per the horrid precedent set by the Fifth Circuit, when it found age verification rules specifically targeting porn websites to be constitutional. Judge Rovner characterized these types of laws as potentially “burdensome.”

Consider this portion of Judge Rovner’s dissenting opinion:

“[We] impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater by subjecting the parties to that burden while awaiting the Supreme Court’s decision without ever considering the relative harms to the parties.”

All three of the Seventh Circuit judges – Judges Frank H. Easterbrook, Amy J. St. Eve, and Rovner – determined SB 17 to be “functionally identical” to HB 1181. And since HB 1181 is already being enforced and the Supreme Court allowed it to stay in force during the ongoing litigation, it was deemed fair to follow this ruling and allow SB 17 to go into force as well. Rovner does note it is troubling they granted the motion to allow SB 17 to be enforced without ever considering the harm an age verification mandate would have on the suing platforms and users.

“Here…the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act.”

The Seventh Circuit declined to rule on the constitutionality of SB 17, unlike the Fifth Circuit in the case of Texas HB 1181. It only looked at whether or not the law could go into effect now or should be stayed.

Rovner rightly points out that the Supreme Court’s decision to grant cert in the Paxton case should cause some more careful thinking by the Seventh Circuit. It at least indicates that some at the Supreme Court feel the case in the Fifth was decided incorrectly.

One could as easily argue that the Court’s grant of certiorari signals a concern with the Fifth Circuit’s determination of constitutionality, and favors leaving the district court’s determination in place.

When reviewing these laws, it’s reasonable to think SCOTUS might believe that the Fifth Circuit erred in using rational basis (or, similarly, that it erred in how it applied that scrutiny). That would explain why it took the case. And thus, Rovner is correct that it’s a bit odd for the Seventh Circuit to effectively bless the Fifth Circuit’s approach right at the very moment the Supreme Court had indicated it may have problems.

Rovner also points out that the majority’s decision in the Seventh Circuit claims to be in favor of keeping the “status quo,” but that makes no sense, given that Indiana’s law has never been in force, and this move puts it into force:

Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis

Either way, for now the law is in effect, and Rokita can go after adult content sites for not making use of age verification while we wait for the Supreme Court to determine if the Fifth Circuit was correct in the first place.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.