CHICAGO — The Seventh Circuit Court of Appeals on Friday allowed the Indiana age verification law for adult content to go into effect, staying a lower court’s injunction blocking enforcement.
As XBIZ reported, a U.S. district court in Indiana had blocked the state’s age verification law from taking effect on July 1.
On Friday, the federal appeals court — which has a majority of conservative judges appointed by Republican presidents — said Indiana’s SEA 17 was “functionally identical” to the Texas age verification law, which went into effect in April, after the U.S. Supreme Court declined to issue a preliminary injunction stopping its enforcement while it decided whether it was going to hear a challenge against it.
Seventh Circuit judges Frank H. Easterbrook (a Ronald Reagan nominee) and Amy J. St. Eve (a George W. Bush nominee) wrote, “We do not see any adequate reason why Texas’s law may be enforced pending the decision on the merits” while Indiana’s may not.
“Functionally identical statutes should be treated the same while the Supreme Court considers the matter,” they added.
Judge Ilana Diamond Rovner (a George H.W. Bush nominee) wrote a partial dissent “agreeing with the appeals panel’s decision to freeze proceedings while waiting for the Supreme Court’s opinion,” but disagreeing with granting the injunction’s stay,” the Indiana Capital Chronicle reported.
For Rovner, the difference between the states is that the Texas law was already in effect when SCOTUS declined to stop it, but the Indiana law was not.
In Texas, the plaintiffs “were already subjected to its burdens,” she wrote, and SCOTUS “merely left the case as it found it, leaving the parties no worse off than they had been.”
In Indiana, she noted, the plaintiff’s haven’t had to comply with the law’s “burdensome requirements.”
In July, SCOTUS granted the petition for a writ of certiorari in the Free Speech Coalition-led challenge to Texas’ age verification law, agreeing to hear the case in the next term.
Industry Attorneys Condemn Appeals Ruling
Industry attorney and First Amendment expert Lawrence Walters from Walters Law Group told XBIZ that the damage done by “the erroneous Fifth Circuit decision in the Texas case” continues to be compounded by the Seventh Circuit’s decision.
“The fact that SCOTUS decided to grant review should have indicated to the Seventh Circuit that there are significant constitutional concerns with these age verification laws and resulted in continuation of the injunction granted by the district court in Indiana,” Walters explained. “The dissent in the Seventh Circuit is correct that the procedural posture of the Indiana case is different, and should have resulted in the injunction continuing throughout the appellate process since the law was never in effect.”
Walters added that, “unfortunately, now adult website operators will likely be required to bear the substantial burdens of this law being allowed to go into effect before the merits of the constitutional challenge are considered by the Seventh Circuit.”
Adult consumers in Indiana, he noted, will likewise have their First Amendment rights to access constitutionally protected adult content “impinged by being required to undergo age verification, along with being exposed to the associated dangers of data leaks.”
Walters said he remains hopeful that SCOTUS “will right the ship by demanding that these laws be subjected to strict scrutiny review as similar laws have been for decades.”
Fellow industry attorney Corey Silverstein, from Silverstein Legal, told XBIZ he also disagrees with majority’s decision, because the preliminary injunction should not have been stayed, as explained by the dissent.
“Judge Young’s lengthy preliminary injunction is spot-on and given that SCOTUS has already agreed to hear the challenge to Texas’ similar age verification law, the injunction should not have been stayed and makes little sense,” Silverstein explained. “I remain confident that the US Supreme Court will stand behind the First Amendment and existing case precedent and clean up the mess that so many states have made.”