By Jay Hale
On June 15, 2022, Louisiana broke new ground by enacting a law that creates civil liability for commercial entities whose websites contain more than 33.3% of material deemed harmful to minors.[1] This liability comes into play if minors gain access to such content, and the entity fails to implement reasonable age verification methods on its website.[2] These methods can range from digital ID cards to government-issued identification or any commercially viable approach that relies on public or private transactional data to confirm a user’s age.[3]
After Louisiana’s bold move in introducing this age verification law, several other states quickly passed similar legislation.[4] Virginia was among these states, enacting its own age verification law on May 12, 2023.[5] In this article, I will delve into recent challenges faced by similar laws in Utah and Texas, shedding light on potential challenges that Virginia’s age verification law might encounter.
Utah:
Utah made headlines with the passage of SB 287, known as the “Online Pornography Viewing Age Requirements” law. This legislation aimed to compel adult content websites to implement age verification systems, ensuring that individuals had reached the legal age before accessing explicit material.[6] However, this law quickly found itself in the crosshairs of legal challenges by the adult entertainment industry.[7]
In response to SB 287, Pornhub took the drastic step of blocking Utah-based internet connection access to all of its content.[8] The porn site xHampster attempted to comply with the new law by using a service called Yoti, a system that estimates a user’s age through selfies without storing personal data.[9] Interestingly, when Pornhub closed its doors to Utah users, there was a notable surge in VPN downloads across the state.[10] This raises legitimate concerns that websites like Pornhub might still face liability if minors in Utah use VPNs to gain access to sensitive material.[11]
One of the most significant challenges to Utah’s new age verification law was presented in the case of Free Speech Coalition v. Anderson. In this case, the plaintiffs contended that SB 287 was unconstitutional.[12] They sought to enjoin the Commissioner of Utah’s Department of Public Safety from permitting the download of its data files for use in the age verification process.[13] Their argument revolved around the law’s alleged impermissible vagueness, which they believed violated the due process clause of the Constitution.[14] Additionally, they argued that SB 287 placed a substantial burden on interstate commerce by restricting the ability of online content providers to reach Utah residents.[15] Furthermore, the law was criticized for imposing a content-based restriction on protected speech without effectively achieving the State’s goal of protecting minors from harmful material that is readily available elsewhere.[16]
The defendants in this case sought to have it dismissed, arguing that it lacked jurisdiction under the 11th Amendment, which typically prevents citizens from suing their own state in Federal Court.[17] This rule also extends to lawsuits against state officials acting in their official capacity.[18] However, there is an exception known as Ex parte Young which allows plaintiffs to sue state officials if the state official has a duty to enforce the statute in question.[19] In this case, the plaintiffs couldn’t use the Ex parte Young exception against the Attorney General because the law in question allowed private individuals, not state actors, to enforce it.[20] The Attorney General’s general duty to enforce the law didn’t qualify for the exception.[21] The same went for Commissioner Anderson, who oversaw a program related to driver’s licenses but lacked the online infrastructure needed for age verification.[22] Due to this, the Court found that it lacked jurisdiction over the matter.[23]
While the case was ultimately dismissed, it sheds light on the challenges potential plaintiffs in Virginia might face when attempting to sue the state over its age verification law. Much like Utah, Virginia empowers private individuals to sue commercial entities for violating the law.[24] Consequently, it’s highly likely that a Virginia plaintiff would be unsuccessful in suing state officials on the grounds of the law’s unconstitutionality.
However, there remains a glimmer of hope for the adult entertainment industry in their battle against these laws. InFree Speech Coalition v. Anderson, the Judge’s opinion included a statement that offered some solace: “It may be of little succor to Plaintiffs, but any commercial entity sued under SB 287 may pursue state and federal constitutional arguments in his or her defense. They just cannot receive a pre-enforcement injunction…”[25]
The path forward suggests that until a commercial entity faces legal action under the age verification laws of each state, Utah and Virginia will have to wait to determine whether their respective age verification laws are indeed constitutional. A recent case in Texas, however, provides a hint that these age verification laws will continue to face significant constitutional challenges.
Texas:
Texas’ law sets itself apart from Utah and Virginia’s age verification laws in a significant way. While these states empower private individuals to bring claims against entities failing to comply with age verification requirements, Texas takes it a step further. It grants its Attorney General the authority to take legal action against online entities knowingly flouting the state’s age verification law.[26]
A pivotal case that exemplifies the clash over Texas’s age verification law is Free Speech Coalition Inc. v. Colmenero. This legal battle played out in the United States District Court for the Western District of Texas, Austin Division. Here, the Plaintiffs sought a preliminary injunction, a maneuver aimed at halting the enforcement of the age verification bill.[27]
What made this case particularly noteworthy was the Court’s determination of its jurisdiction. It determined that the Ex parte Young exception was present.[28] In this instance, the Attorney General’s involvement with the enforcement of the age verification law provided the necessary connection for the Court to assert jurisdiction.[29]
Furthermore, the Court determined that Texas’s age verification law violates the first amendment of the Constitution. Although the Judge acknowledged the consensus that pornography is inappropriate for children, Texas fell short in demonstrating that its law was narrowly tailored to the purpose of safeguarding minors.[30] The law also appears to unfairly target websites such as Pornhub while overlooking websites like Reddit, where pornography is prevalent but doesn’t make up over a third of its total content.[31]
As the law regulates speech, encompassing content deserving of First Amendment protection, it must survive strict scrutiny, meeting three critical criteria: (1) serve a compelling government interest, (2) be narrowly tailored to achieve that interest, and (3) be the least restrictive means of advancing it.[32] While a compelling state interest does exist in this context, the law falters in the realm of narrow tailoring.[33] It only applies to a subset of pornographic websites that are subject to the personal jurisdiction of Texas, failing to encompass many foreign websites beyond its reach.[34] Consequently, the law lacks a valid enforcement mechanism, permitting minors to access potentially explicit content from foreign sites with no ties to the United States.[35] Additionally, the law is overly broad and restrictive. It deters adult’s access to legal, sexually explicit material, well beyond the scope of protecting minors.[36]
The Court’s ruling highlighted how the law would deter many adults from engaging with the restricted content out of reluctance to disclose their identification information, fearing that it might be collected and stored.[37] The requirement for adults to actively identify themselves before accessing such material creates a chilling effect on their ability to access protected speech.[38]
Conclusion:
In summary, Utah and Texas serve as intriguing precursors for the constitutionality of Virginia’s age verification law. While Utah’s legal battle highlighted the challenges for plaintiffs in states where only private individuals can sue, Virginia seems poised for a similar scenario. In contrast, Texas, with its unique approach granting its Attorney General enforcement powers, sparked a constitutional clash that questioned the law’s narrow tailoring and potential chilling effect on adult access to explicit content.
As these age verification laws evolve, they foreshadow a future filled with legal battles and constitutional scrutiny, with the adult entertainment industry at the forefront of the fight to protect its interests and free expression rights.
[1] H.R. 142, 2022 Reg. Sess. (Va. 2023), http://www.legis.la.gov/legis/ViewDocument.aspx?d=1249878.
[2] Id.
[3] Id.
[4] Sara Cline & Kevin McGill, Adult entertainment group sues Louisiana over age-verification law for porn, AP News (June 22, 2023, 5:31 PM), https://apnews.com/article/porn-lawsuit-age-verification-louisiana-65c5ff6c6e15c8c95f73e81e3dc0a65e.
[5] H.R. 142, 2022 Reg. Sess. (Va. 2023).
[6] Ben Winslow, Pornhub blocks Utah in protest of new age-verification law, Fox 13 News Utah (May 1, 2023, 2:30 PM), https://www.fox13now.com/news/local-news/pornhub-blocks-utah-in-protest-of-new-age-verification-law
[7] Christopher Brown, Adult-Industry Group Challenges Utah Online Age Verification Law, Bloomberg Law (May 5, 2023, 2:03 PM), https://news.bloomberglaw.com/us-law-week/utah-age-minimum-website-law-challenged-by-adult-industry-group.
[8] Skye Witley & Andrea Vittorio, Porn Site Pushback on Utah Law Foreshadows More Age-Check Fights, Bloomberg Law (May 12, 2023, 5:10 AM), https://news.bloomberglaw.com/privacy-and-data-security/porn-site-pushback-on-utah-law-foreshadows-more-age-check-fights.
[9]Id.
[10] Christiano Lima & David DiMolfetta, Utah’s porn crackdown has a VPN problem, The Washington Post (May 5, 2023, 9:05 AM), https://www.washingtonpost.com/politics/2023/05/05/utahs-porn-crackdown-has-vpn-problem/.
[11] Id.
[12] Free Speech Coal., Inc. v. Anderson, No. 2:23-CV-287 TS, 2023 U.S. Dist. LEXIS 134645 (D. Utah Aug. 1, 2023).
[13] Id.
[14] Id.
[15] Id.
[16] Brown, supra note 7.
[17] Free Speech Coal., Inc. v. Anderson, No. 2:23-CV-287 TS, 2023 U.S. Dist. LEXIS 134645 (D. Utah Aug. 1, 2023).
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] H.R. 142, 2022 Reg. Sess. (Va. 2023).
[25] Free Speech Coal., Inc. v. Anderson, No. 2:23-CV-287 TS, 2023 U.S. Dist. LEXIS 134645 (D. Utah Aug. 1, 2023).
[26] H.B. 1181, 88th Leg., Reg. Sess. (2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB01181F.pdf#navpanes=0.
[27] Amanda Silberling, Texas cannot yet enforce ID checks on porn sites, TechCrunch (Aug. 31, 2023, 4:23 PM), https://techcrunch.com/2023/08/31/texas-cannot-yet-enforce-id-checks-on-porn-sites/.
[28] Free Speech Coal., Inc. v. Colmenero, No. 1:23-CV-917-DAE, 2023 U.S. Dist. LEXIS 154065 (W.D. Tex. Aug. 31, 2023).
[29] Id.
[30] Andrea Vittorio, Porn Industry Group Wins Pause of Texas Online Age Check Law, Bloomberg Law (Aug. 31, 2023, 5:32 PM), https://news.bloomberglaw.com/privacy-and-data-security/porn-industry-group-stops-texas-from-implementing-age-check-law.
[31] Id.
[32] Free Speech Coal., Inc. v. Colmenero, No. 1:23-CV-917-DAE, 2023 U.S. Dist. LEXIS 154065 (W.D. Tex. Aug. 31, 2023).
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
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