This post is courtesy of Regent Law Family Law student Caleb Ridings:
The debate
over regulation of pornography has entered a new stage, demarcated by the
sudden popularity of age verification statutes. Beginning with Louisiana in
2022, state legislatures have begun to seriously address the problem of
children’s access to internet pornography. Currently eight states have
enacted laws requiring users to verify their age to access adult websites.
Dozens of other states are working on similar legislation. This blog post will
provide a brief overview of the current state of age verification in the United
States, including the types of verification methods used and the status of
enacted legislation in light of recent federal litigation, before reflecting on
relevant Supreme Court precedent and the challenges that lie ahead.
Balancing Privacy and Protection: Three
Methods of Age Verification
Age
verification systems address the enforcement problem of age-gates. An age-gate
is a pop-up that appears on a website asking for the user to confirm they are a
certain age. Until recently, these have been the predominant method of
restricting access to adult websites. The problem with this method is users can
simply check a box or enter a fake birthday with impunity. Age-gates have no way
to check the accuracy of the information provided to it.
Age
verification uses additional information to verify a user’s submitted age.
Three methods have been discussed
for this. The first requires a user to prove their age by supplying an ID
either to the website or a third-party intermediary. This option has been
adopted by Louisiana, using an intermediary known as Allpasstrust. The second method uses facial recognition to
guess whether a user is over 18. Facebook and Instagram currently try this
method. The third method has AI guess a user’s age based on their online
activity. This method has been discussed by France’s
National Commission on Informatics and Liberty.
The first
states to adopt age verification laws have shown a preference for the first
method, if the legislation specifies any at all. Some states simply mandate
certain sites adopt some kind of age verification method. Readers should be
watchful to see how the legality surrounding each of the three methods
develops.
Trouble at Home: Challenges to Enacted
Legislation
Despite
the general
acceptance on all sides of the aisle that children should not be
exposed to pornography, these bills have not been met without resistance.
In an unexpected boon for parents, leading
porn websites have boycotted certain states that have enacted age
verification laws. Defenders of open access to adult content, most notably the
Free Speech Coalition (an organization representing the interests of adult film
businesses, studios, actors, and crew), have already sued to enjoin the
enforcement of these laws. Their success has been mixed.
In Utah and
Louisiana, such suits were dismissed for lack of standing. See Free Speech
Coalition, Inc. v. LeBlanc, 2023 WL 6464768 (E.D. La., Oct. 4, 2023); Free
Speech Coalition, Inc. v. Anderson, 2023 WL 499509 (D. Utah, Aug. 1, 2023).
However, in Texas and Arkansas, federal district judges sustained injunctions
against enforcement of age verification laws, holding that such laws were undue
infringements on free speech (echoing Supreme Court rhetoric discussed below).
See NetChoice, LLC v. Griffin, 2023 WL 5660155 (W.D. Ark., Aug. 31, 2023); Free
Speech Coalition, Inc. v. Colmenero, 2023 WL 5655712 (W.D. Tex., Aug. 31,
2023). Although we have not witnessed any circuit splits over this, these
differences in outcomes are early signs of a future Supreme Court battle
revisiting this discussion.
Trouble at the Top: Decades of
Unhelpful Supreme Court Precedent
Despite
holding that obscenity is not a form of speech protected by the First
Amendment, the Supreme Court has been increasingly hesitant to allow any
effective restriction on pornography. The infamous Miller test,
originating in Miller v. California, has managed to exclude the vast
majority of pornography from falling under the Court’s definition of obscenity.
Thus, regulations of pornography are usually examined under strict scrutiny,
where the government must show a law is the least restrictive means possible to
achieving a compelling government interest.
In
the late 1990s and early 2000s, the Supreme Court issued multiple opinions
declaring that attempts to limit children’s access to pornography do not survive
strict scrutiny. In United States v. Playboy Entertainment Group, Inc.,
the Court concluded that requiring cable television operators to block adult
programs or limit their airtime to between 10 p.m. and 6 a.m. was not the
“least restrictive means” to limiting children’s exposure to pornography on TV.
The Court speculated over two alternatives and chastised the government for
failing to consider either of two hypothetical alternatives. Similarly, in Ashcroft
v. ACLU and Reno v. ACLU, the Court again concluded that internet
restrictions on access to adult websites failed strict scrutiny for not the
least restrictive means. In both cases the Court championed the use of internet
filters and voluntary blocking by parents in place of age verification.
It
is likely that the Supreme Court will hear another case on this issue as states
continue to enact new age verification laws. It has been twenty years since Ashcroft,
and much has changed in the landscape of the internet. As studies continue to
pour out about the harmful effects of pornography on children and the early age
of exposure, justices may be inclined to reconsider their old opinions.
Advocates will need to fight hard to make sure this current move towards a
safer internet does not become just another backstory to another Supreme Court
case striking down anti-pornography laws. For the sake of our children, one can
only hope they succeed.