(CN) - Sexually oriented businesses told a Fifth Circuit Court of Appeals panel Monday that a Texas law banning them from employing adults under age 21 violates their freedom of speech, arguing that a lower court erred in upholding the law as constitutional.

In his 2024 ruling, U.S. District Judge Robert Pitman of the Western District of Texas found that S.B. 315, a law passed in 2021 that aims to combat sex trafficking by raising the minimum age of employment at companies like strip clubs and adult bookstores, video stores and arcades, does not violate the First Amendment.

Pitman, a Barack Obama appointee, found that Texas had not shown that employees other than strip club dancers were vulnerable to trafficking, and thus "S.B. 315 plainly regulates more than necessary to stop sex trafficking, as it prohibits all employment of 18- to 20-year-olds at [sexually-oriented businesses]." However, Pitman held that non-dancer employees do not engage in First Amendment activities.

This finding was an error, J. Michael Murray, an attorney representing several sexually oriented businesses and a trade group for such companies that brought a challenge to the law, told the Fifth Circuit panel Monday. He argued that employees like bookstore clerks are necessary for the employer to disseminate its speech.

"The employees at adult bookstores, the managers, the clerks, personnel necessary to operate the business sell constitutionally protected videos and DVDs and magazines," Murray said. "They stock the shelves. They recommend material to the customer. They enable the customers to see the videos. That's all First Amendment-protected activity on the part of those employees."

U.S. Circuit Judge Catharina Haynes asked whether there is prior precedent that employees speaking for their employer is protected by the First Amendment. Murray pointed to cases where the Supreme Court ruled that store clerks could be prosecuted for selling obscene material.

"All speakers need other people to help them get their message across," Murray said. "Are we saying that, for example, a news broadcaster who simply on the six o'clock news reads what somebody else wrote, that he's not engaged in First Amendment activity?"

But Texas Assistant Solicitor General Benjamin Wallace Mendelson told the panel the law does not violate the First Amendment because it allows for other avenues for the same speech. Sexually oriented businesses can still operate while not employing people under 21, he argued, and 18- to 20-year-olds can still distribute sexual content as long as they don't do it as part of a sexually oriented business.

"Hundreds of pages of uncontested evidence show what is obvious: sexually oriented businesses run rampant with human trafficking, sexual abuse, commercial sex and other crimes," Mendelson said. "Raising the age of employment in those businesses to 21 is a modest attempt to solve those problems."

Senior U.S. Circuit Judge James Dennis and U.S. Circuit Judge Carl Stewart, both Bill Clinton appointees, joined Haynes, a George W. Bush appointee, on the panel.

Source: Courthouse News Service