Age Verification Laws — A Guide to Understanding the Latest Attacks on Free Speech and the Adult industry
Age verification laws have been making headlines this year, as a huge slew of states have begun rushing to legislate and pass laws that would require adult websites to check or scan a user’s government ID or use online payment information to confirm that they are over 18.
Though these laws may seem well-intentioned at first glance, many of the policy makers proposing them across the country are ill-informed of the immediate impacts these laws have in the real world and the potential harm they could inflict on consumers. The Free Speech Coalition, the non-partisan nonprofit trade association for the adult industry, has been tracking the states where age verification bills are being introduced and has been making headway in proving their unconstitutionality in court. Below, we’ll get into what these laws propose, why they are so insidious, and describe some better, more effective solutions for keeping kids safe from adult content online.
What are age verification laws, anyways?
In 2022, the state of Louisiana passed House Bill №142, requiring the use of age verification on websites that contain a “substantial portion” (33.33% or more) of adult content. The sites are expected to go about this by either checking/scanning a user’s government identification (like a driver’s license), performing a face scan, or utilizing “public or private transactional data” to confirm that a user is at least 18 years of age.
The primary issue that the Free Speech Coalition has with this law and the thirty-five copycat laws that have since been proposed or passed in other states is that, apart from being unconstitutional, they will not actually keep minors from accessing sensitive content. They also represent a risk to adult website visitors, in the form of identity theft and the potential to leak incredibly sensitive information, such as consumers’ sexual preferences, online adult purchases, or chat history.
A recent published study found that among middle schoolers (kids aged 11 to 14), 41% of them use a VPN (virtual private network) to browse the internet, concealing location data and evading age checks. Common Sense Media, a massive nonprofit dedicated to providing media advice and recommendations for families, also released a report in January of 2023 stating that 58% of teens aged 13–17 have seen pornography or adult content accidentally. Of that 58%, 18% of the teens reported that the content they’d viewed was on a social media platform, not an explicitly adult site.
This is particularly distressing, because the Louisiana bill and others that copy it nearly word-for-word only apply to websites where over one-third of the content meets the vague definition of being harmful to minors. Using these parameters, social media sites would be exempt from age verification in the eyes of the law, and the bill would do virtually nothing to protect minors.
What makes these laws unconstitutional?
“The basic gist of the unconstitutionality is that they present an unreasonable burden on accessing constitutionally protected speech,” says Mike Stabile, Director of Public Affairs for Free Speech Coalition. He cites the monetary costs of building, installing, and maintaining age verification software for creators and websites and the potential hacking and ID theft risks to consumers as constituting this unfair burden, especially when effective, less-intrusive technology (like device filters) already exists.
As we’ve learned from the incredibly saddening results of the Ashley Madison hack and subsequent data leak, in which countless marriages were destroyed and at least two users may have committed suicide, the effects of personal identification (like driver’s licenses) and credit cards being used for age verification and later saved by the website or government as user profiles can be far-reaching and severe. Stabile urges that, “this is tremendously sensitive material.”
“Even if it’s not publicly disclosed, there’s the potential for bad actors to exploit the data — either to extort users through blackmail over their adult site visits (already a common threat online) or for identity theft,” says Stabile. “In the weeks after Louisiana passed the [age verification] law, Free Speech Coalition received reports of IDs being sold online.”
Adult industry attorney, Corey D. Silverstein, recently released a recorded panel discussion with legal representatives and adult industry experts weighing in on these “mainstream initiatives levied in opposition of our community.” In it, the group discusses how, though the laws are often promoted under the guise of protecting “fragile, vulnerable populations,” the harm they can cause to consumers and content creators is very real, and the industry needs to act proactively, rather than reactively, to the legislative attacks. Dr. Chauntelle Tibbals, a sociologist who was featured on the panel, said that, because the mainstream world continues to be manipulated by politicians’ misrepresentative tactics, we can’t simply wait around for regular folks to stand up for free speech. “We have to do it ourselves, together,” she says.
Wasn’t this already handled in the 90s?
Yes. Yes, it was. In 1997, in the case of Reno, Attorney General of the United States, et al v. American Civil Liberties Union, et al, the Supreme Court ruled that content on the internet is entitled to the same high-degree, First Amendment free speech protections that’s extended to print media, but not to T.V. and radio broadcasts. In addition to this sweeping win for free speech, the case also ruled, in a unanimous decision, that certain provisions in the 1996 Communications Decency Act designed to protect minors from “patently offensive” and “indecent” communications on the internet were overreaching in protecting adults’ First Amendment rights.
Ultimately, it was deemed that the terms “indecent” and “patently offensive” were vague and overbroad, reaching well beyond the Miller v. California definition of unprotected speech.
“The Supreme Court ruled on this early on in the internet, saying that while the government does have a compelling interest in protecting children, it cannot restrict legal speech where less restrictive measures (such as device filters) exist,” explains Stabile.
In response to this court ruling, Congress passed the Child Online Protection Act in 1998, which made it illegal to knowingly post “for commercial purposes” web content that is “harmful to minors,” with no attempts at restriction to access. This act, however, was also struck down (in 2002), when the Court ruled that less-invasive and restrictive means (like content filters and blockers) were potentially more effective options than those proposed in the new law. This especially applies to content from foreign sources that Congress is unable to regulate.
How do they negatively affect performers and creators?
To put it succinctly, many performers and independent creators simply can’t afford the cost of building and maintaining age verification software on smaller, niche, or more personal adult websites. The financial and legal burden can be enormous, even for larger sites with financial resources at their disposal. “It can cost one dollar or more, per verification,” explains Stabile. “Now, if you’ve got a million visitors to your site, that’s a million dollars in a month, right? That’s a lot of money. That’s going to end pretty much any business.”
Because of the costs involved, the vague way many of the new laws are worded, and the fact that the required software to comply with the laws doesn’t even exist yet in many states, many adult sites are preemptively ceasing their business in states that pass age verification bills. “Some sites have just gone ahead and blocked other states, so we are losing clientele in those states. We are at risk of being sued in some states for non-compliance–even if their compliance tools aren’t built yet,” says Allie Knox, a fetish performer and advisor for SpankChain, an online platform designed to bring blockchain-based payment solutions to the adult industry.
What states are currently trying to pass these bills?
In short, a lot of them. From California to Florida, thirty-five age verification bills have been introduced at the state level in 30 different locales. Free Speech Coalition has posted a handy Bill Tracker on their website, filled with legislative Cliffs Notes about each one, as well as information about how far along they are in the process of getting passed and signed by the requisite governor. The latest two states to jump into the fray are Illinois and Ohio.
What are some better, adult industry-approved alternatives?
One of the most interesting things about the Common Sense Media report is that it also revealed that 41% of teens reported seeing online pornography during the school day, with a surprising 44% disclosing that they’d seen it on a school-issued device. If schools and parents were implementing content blockers or device filters for adult content, this wouldn’t be an issue.
“Better alternatives are things like filters at a device level, so parents can put free filter controls on their children’s devices and block things like porn, violence, making purchases, and social media,” says Knox. “This allows the parents to restrict the content their children have access to without infringing on the rights of consenting adults.”
“You can also add in things, like Twitter or Reddit, that host adult content, if you don’t want your kid accessing it,” explains Stabile. He added that the current laws only take effect at the state level, so a simple VPN, which most teens know how to use, will quickly get around location restrictions.
Adult websites do not want children on their platforms. Not only do they want to help keep kids safe, they are also fully aware that children are not paying customers and do not possess credit cards. “Talking at a total cynical level, they’re not consumers, right?” says Stabile, adding that even the most capitalist-minded business person would acknowledge that having unwanted (and illegal) minors on their sites is a waste of server space, which drives up costs.
How is the FSC working to fight these laws and how can I help?
Not only does the Free Speech Coalition (FSC) have an age verification bill tracker on their site, detailing their fight against each of the new bills that have been introduced and the measures they’ve taken to help put a stop to each one, they also post monthly legislative updates for activists and interested individuals to stay informed. The nonprofit is also beginning to make big strides when it comes to legislating against these laws.
Back in August 2023, the FSC secured a preliminary injunction against Texas’ unconstitutional HB 1181, meaning that Texas is blocked from enforcing the law (which would have gone into effect September 1, 2023) while litigation is taking place. The Court also agreed with the FSC that the state does not have the right to compel speech In the form of health warnings (Texas was trying to label porn with body image and addiction warnings) and that parental/device filters are a less-restrictive and more effective way of protecting minors from potentially harmful content.
Unfortunately, in spite of their blatant unconstitutionality, new bills are being proposed every month, with Ohio and Illinois being the latest to jump on the bandwagon and try to subject adult sites to felony charges or fine them thousands of dollars a day, respectively, if they do not implement age verification software. Neither bill has passed yet, but North Carolina’s governor, democrat Roy Cooper, recently signed HB 8, a last-minute addition to an otherwise unrelated bill that requires age verification to go into effect on January 1, 2024, despite the well-reasoned arguments put forth by the FSC.
“This is part of a larger, broad, not just anti-porn battle, but an anti-LGBTQ and anti-sex ed battle that’s going on in the state legislatures,” explains Stabile. Having engaged, boots-on-the-ground activists at every level is key to protecting free speech in this arena. SpankChain is launching a series of approachable, informational videos under their new Spank University platform, featuring veteran adult industry producers like Allie Knox and Holly Randall. The videos will take aim at themes like content creation, consent, STI testing, and how to install and use device filters to protect your kids.
Check out Spank University’s YouTube channel
If you’d like to get involved in a more active way, consider joining FSC as a member or signing up to volunteer for the cause. Every voice matters, and if North Carolina, Ohio, and Illinois’ recent moves have taught us anything, it’s that these unconstitutional bills are not going away any time soon.
“The technology is new, the legislation is rushed, and consumers are vulnerable,” says Stabile, adding, “it’s not a matter of if this happens, it’s when and to how many.”
