Appeals Court Considers First Amendment Case Over Employment Restrictions in Adult Industry

Adults-only establishments told a panel of the U.S. Court of Appeals for the Fifth Circuit on Monday to strike down a Texas law that prohibits individuals under 21 from working at their establishments, arguing the statute violates the First Amendment.

The law in question, Senate Bill 315, was enacted in 2021 with the stated goal of curbing sex trafficking by raising the minimum employment age at adult entertainment venues, including strip clubs, adult bookstores, video stores and arcades. In a 2024 ruling, U.S. District Judge Robert Pitman upheld the law’s constitutionality, finding that it did not infringe on free speech protections.

Judge Pitman, appointed by former President Barack Obama, acknowledged that Texas had not established a strong evidentiary link between trafficking and non-performing employees at such businesses. Nevertheless, he concluded that the First Amendment did not extend to workers such as clerks and managers who do not engage in expressive conduct.

Attorney J. Michael Murray, representing a coalition of affected businesses and a trade association, contended that the district court’s interpretation was flawed. Speaking before the Fifth Circuit panel, Murray argued that employees in adult retail settings facilitate constitutionally protected speech by performing functions critical to the distribution of expressive materials.

"These employees stock the shelves, recommend titles and enable customers to access legally protected content. That activity is integral to the communication of the business’s message," Murray told the court.

U.S. Circuit Judge Catharina Haynes questioned whether existing precedent supports the notion that employee conduct, carried out on behalf of a business, constitutes protected speech. In response, Murray cited past Supreme Court rulings involving prosecutions for the sale of obscene materials, asserting that distribution itself is a speech-related activity.

"All speakers rely on others to help convey their message," Murray said. "If a news anchor reads someone else’s script on live television, does that mean the anchor is not engaging in speech?"

Representing the state, Assistant Solicitor General Benjamin Wallace Mendelson maintained that the law does not violate the First Amendment. He argued that sexually oriented businesses may still operate and communicate their messages, provided they do not employ individuals under 21 and that adults aged 18 to 20 remain free to engage in the same speech outside of those businesses.

"Extensive, uncontested evidence demonstrates the strong link between sexually oriented businesses and human trafficking, abuse and other criminal conduct," Mendelson said. "This law is a narrow, targeted intervention aimed at reducing those harms by limiting the age of potential employees."

The panel included Judges James Dennis and Carl Stewart, both appointees of President Bill Clinton, and Judge Haynes, appointed by President George W. Bush. A decision from the Fifth Circuit is pending.