As state legislators across the country enact legislation to protect minors from easy access to pornography, a group of lawyers representing Pornhub, XVideos, xnxx.com and many others have been filing suits in many states to protect their benefactors from the burden of verifying that minors are not accessing their content.
This group is called “The Free Speech Coalition” whose de facto mission is to attack any and all laws which make pornography production and distribution less economical. With assets of $412,935 and yearly revenue of $877,598,1 the organization has lamented that they lack the resources to successfully defeat the multitude of bills which protect minors from free access to pornography online.
As of August 1st, 2023, seven states have passed and enacted legislation to check IDs of users accessing adult material, and eight more states have introduced such legislation.
Utah SB287, for example, which went into effect in May 2023, requires online websites with a substantial amount of material harmful to minors to verify a user’s age before providing access to such content. Should the website fail to check the age of a user and still provide access, they may be subject to civil liability.
The bill allows for private right of action by Utah residents to bring a case against such a commercial entity online if they cause harm to minors by providing such material after failing to ensure the user is 18 years old.
You can read the entire bill here
This bill has been successfully passed and enacted in seven states, the first being Louisiana. After the Louisiana bill was enacted in January, a Pornhub spokesman told CNN that traffic from the state was down 80%.2
Pornhub, a company which currently age-verifies its performers but not its users,3 shut down their website entirely in Utah, Mississippi and Virginia this year in response to the bill’s passage in these states.
The lawyers of the Free Speech Coalition challenged the Utah law on a multitude of constitutionality grounds. Pulling from many of their past successes, they filed a suit against the Utah Attorney General to strike down the law and recollect their attorney fees.
The case was dismissed.
This is because the Eleventh Amendment bars citizens from bringing a suit against their own state if the state does not have enforcement authority of the law in question. Since SB287 creates a private right of action for Utah residents to bring cases against commercial entities, enforcement authority is with private parties rather than the state or the Attorney General.
The Free Speech Coalition has appealed.
In Texas, which enacted similar legislation this year, the Attorney General does have enforcement authority of the law, and so it is unlikely the Eleventh Amendment will be used to dismiss this case.
However, in their case against Texas, the Free Speech Coalition stated
“FSC has diverted resources away from its normal day-to-day activity, which has impaired its ability to perform its usual functions. Over the last six months, both FSC’s Executive Director and Director of Public Affairs have had to devote more than half their time to tracking legislative developments, meeting with FSC members to discuss risks relating to age-verification statutes, meeting with litigation attorneys and advisors, and otherwise engaging in activities to minimize the risk to its members from the age-verification statutes that states, in particular Texas, have recently enacted.”
Free Speech Coalition, Inc. et al v. Colmenero, 1:23-cv-917 (W.D. Tex. 2023)
In other words, they’re afraid.
But it’s not over. As the Free Speech Coalition moves to appeal the decision in Utah, and has active cases in Louisiana, Utah and Texas, the time to really show them we mean business is now.
Sign up to take action in your state, and pass a law that strikes the enemy where it hurts-
Their wallet.
UPDATE 10/12 – The porn lobby case in Louisiana has now also failed.
- https://projects.propublica.org/nonprofits/organizations/954302175/202223189349320462/full
- CBS News, May 2, 2023, https://www.cbsnews.com/atlanta/news/pornhub-blocks-access-in-utah-over-age-verification-law/
- https://mashable.com/article/how-to-get-verified-pornhub