Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Age restriction on employees at sexually oriented businesses does not violate First Amendment, (Jul 15, 2025)

By Todd Harrison, J.D.

At issue was a Texas law prohibiting individuals under the age of 21 from working at sexually oriented businesses in an effort to prevent trafficking and sexual exploitation.

Affirming a district court’s judgment upholding the constitutionality of a Texas law raising the minimum age of employees at sexually oriented businesses, the Fifth Circuit determined that Texas had established a reasonable belief that the law furthers a substantial state interest and permits reasonable alternative avenues of communication. Although the appellants in this case were correct that Texas could have produced more precise evidence on trafficking at certain businesses such as adult bookstores, the court noted that the state’s evidentiary hurdle was low, and it cleared that bar in this instance. Further, the appellants failed to establish that the law precludes their ability to open and operate or otherwise substantially restricts their ability to disseminate speech (Association of Club Executives of Texas, Inc. v. Paxton, No. 24-50434 (5th Cir. July 14, 2025)).

In 2021, the Texas Legislature enacted a bill recognizing that sexually oriented businesses are high-risk locations for human trafficking and sexual exploitation. The bill aimed to “provide necessary mechanisms” to prevent the “harmful secondary effects of sexually oriented businesses.” To that end, it raised the age of employment at sexually oriented businesses from 18 to 21.

Lawsuit. A non-profit trade group whose membership consists of adult cabarets and adult bookstores subject to the age-based restriction along with other individual plaintiffs challenged the constitutionality of the bill, seeking declaratory and injunctive relief.

Witness testimony. Three witnesses testified at trial. One witness for the appellants asserted that sexually oriented businesses do not have high levels of sex trafficking, concluding that less than one percent of human trafficking occurs in such businesses in Texas. Another witness called by the state authored an expert report showing that 24 percent of sex trafficking victims experienced trafficking at a strip club, while another survey she conducted put that number at 28 percent. The third witness was a former federal sex-trafficking prosecutor who testified that many of her investigations involved sexually oriented businesses, some of which were members of the trade group that filed this lawsuit.

Post-trial. After trial, the district court determined that intermediate scrutiny applied to the First Amendment challenge, concluding that the law furthers the state’s interest in reducing sex trafficking and does not restrict substantially more speech than necessary to further that interest. This appeal followed.

Renton. First, the appellate court observed that the district court correctly concluded that intermediate scrutiny applied. In reviewing First Amendment challenges to sexually oriented business regulations, the court applies a two-step test adopted in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986). At the first step, the court asks whether the law bans sexually oriented businesses or merely regulates the time, place, and manner of their operation. If the latter is true, the second step asks whether the law is designed to combat the undesirable secondary effects of such businesses rather than to restrict their free expression.

Substantial government interest. Turning its attention to the first step under Renton, the court explained a sexually oriented business regulation is designed to serve a substantial government interest when the municipality can provide evidence supporting a link between the regulated business and the targeted secondary effects. The court noted that the government’s evidentiary burden on this point is light and it need not forge an ironclad connection between such businesses and secondary effects.

Here, the court found the record replete with evidence linking sexually oriented businesses to sex trafficking and sex crimes, including testimony from the state’s expert witnesses. While the court considered the expert testimony and other evidence relatively clear as it related to businesses such as strip clubs, it noted that the state’s argument regarding other sexually oriented businesses, such as adult bookstores and arcades, was less clear cut.

According to the appellants, the state did not produce evidence of employees being trafficked at an adult bookstore, video store, or arcade. The court agreed that the state could have produced more precise evidence on this point. However, it noted that the evidentiary burden was low. The district court was correct that the state provided evidence reasonably believed to be relevant to the problem, which is all that Renton demands, said the court.

Alternative avenues of communication. Next, the court addressed the second prong of Renton—whether the regulation allows for reasonable alternative avenues of communication. The court found that the bill satisfied this requirement.

The appellants did not establish that the expressive conduct of their establishments was contingent on the age of their employees, observed the court. Instead, they argued that “bookstore/arcade employees are, in fact, directly involved in disseminating constitutionally protected speech” and “non-performing personnel in adult nightclubs play essential roles in the production and presentation to the audience of the constitutionally protected erotic dance performances.” The court was not moved.

This argument, explained the court, misses the point. The issue was not whether the employees play a part in the dissemination of a businesses’s speech but rather whether the age restriction leaves open reasonable alternative avenues of communication. The appellants failed to establish that the bill precludes their ability to open and operate or otherwise substantially restricts their ability to disseminate speech, said the court.

Individual employee expression. Setting aside their own expression, the appellants briefly argued that the bill restricts the expression of individual employees under the age of 21. As a preliminary matter, the court noted that there were no employees before the court because the only individual plaintiffs that were originally part of this suit turned 21 before trial and were dismissed from the suit. Even so, continued the court, the regulation likely permits reasonable avenues of communication for employees of sexually oriented businesses.

Further, the appellants did not contest that the regulation “leaves those individual employees free to engage in nude dancing or distribute the sort of adult materials found in adult bookstores and arcades outside of” sexually oriented businesses, “even for profit,” said the court. As such, the regulation satisfies the second prong of Renton and the district court correctly concluded that it withstood intermediate scrutiny.

Overbreadth. Finally, the court addressed the appellants’ argument that the regulation was overbroad. Although the district court determined that the regulation “plainly regulates more than necessary to stop sex trafficking, as it prohibits all employment of 18- to 20-year-olds” at sexually oriented businesses, the court here explained that overbreadth is not about whether a statute generally regulates more than it needs to. Instead, the doctrine’s purpose is to protect the expressive rights of third parties not before the court. In other words, continued the court, overbreadth is concerned with speech.

Here, the appellants raised concerns about the scope of the regulation, but they failed to ground those concerns in any unduly chilled protected speech, said the court. As such, they failed to demonstrate the applicability of this “sparingly invoked” doctrine. Accordingly, the district court did not err in holding the regulation constitutional under the First Amendment, and the judgment of the court was affirmed.

The case is No. 24-50434.

Judge: Stewart, C.

Attorneys: Michael J. Murray (Berkman, Gordon, Murray & DeVan) for Association of Club Executives of Texas, Inc. Benjamin Wallace Mendelson, Office of the Texas Attorney General, for Ken Paxton.

Companies: Association of Club Executives of Texas, Inc.

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