Back in the summer of 2021, a handful of plaintiffs, including a company called Texas Entertainment Association Inc., filed a lawsuit challenging the constitutionality of S.B. 315, then a recently-passed law which raised the legal age for working at strip clubs, adult bookstores and other “sexually oriented businesses” (SOBs) operating in Texas to 21.
The case has moved along with the typical slow pace of complex civil litigation. While the court denied the plaintiffs’ motion for a preliminary injunction against enforcement of the law a month after the case began, a trial on the merits of the case has yet to begin. As of an order entered in the case last month, though, there does appear to be light at the end of the waiting tunnel, so to speak.
One of the more recent developments in the case was an order in September from U.S. District Court Judge Robert Pitman, in which the judge denied a motion for summary judgment from the plaintiffs, while partially granting a motion for summary judgment from the State defendants. Pitman’s order set the level of scrutiny in the case; the plaintiffs had argued for strict scrutiny to be applied, but the court, reasoning that the statute merely imposes a “time, place, and manner restriction” on speech, the intermediate scrutiny standard should apply in the case.
There is a wrinkle in the court’s ruling on the level of scrutiny to be applied, however. Noting that another case is pending before the Fifth Circuit Court of Appeals that could change his analysis on the appropriate level of scrutiny to apply, Pitman’s September 21 order informs the parties to the case that they “shall be prepared to discuss S.B. 315 under both intermediate and strict scrutiny at the bench trial.”
In his most recent order, Pitman “directs the parties, or counsel acting on their behalf, to appear for a Final Pretrial Conference on Wednesday, January 17, 2024 at 02:00 PM by video conference.” The order also instructs the parties to consult local rules “regarding matters to be filed in advance of the final pretrial conference.”
While the plaintiffs were unable to secure a preliminary injunction against enforcement of the law, that decision on Pitman’s part is founded upon his assessment that the law should be evaluated under the intermediate scrutiny standard. Should the court’s view on the applicable level of scrutiny change, the plaintiffs’ prospects for success on the merits would improve significantly.
It’s also true that obtaining a preliminary injunction requires the party moving for the injunction to clear a high bar – and the court has already acknowledged that some of the plaintiffs’ arguments could be strengthened by evidence not yet before the court at this stage in the proceedings.
“While further factual development may demonstrate that the unconstitutional applications of S.B. 315 and the amended statutes ‘are both real and substantial in relation to their previously legitimate application to children under the age of 18,’ at this stage Plaintiffs have failed to demonstrate that S.B. 315 likely threatens constitutionally protected speech outside the ambit of Texas’s attempts to end and prevent human trafficking at SOBs,” Pitman wrote in denying a preliminary injunction against enforcement of the law, back in July, 2021.
In their complaint, among other arguments, the plaintiffs assert that the scope of SB 315 goes well beyond regulating relationships between adult businesses and their employees which plausibly can be construed as having potential to combat human trafficking, the law’s stated purpose. The plaintiffs note that S.B. 315 “criminalizes all legal and consensual working relationships between all SOBs and all 18-20-year-old people.”
“There are no exceptions,” the complaint states. “It is now illegal for any SOB to employ or contract with any man or woman to perform any kind of work or service—cashier, store clerk, valet, bartender, waitress, janitor, security guard, secretary, DJ, or exotic dancer—if that person is under 21 years of age.”
While the final pretrial conference date has been set, it’s not yet clear when the trial itself might begin. YNOT will continue monitor the case and report on significant developments during the trial phase.
