Age Verification Statutes: The New Battle to Protect Young Families from Pornography

 

                    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.