(We are frequently updating this blog as we continue to research and follow the matter. For questions or inquiry, please email us @ info@decencyusa.org)
Last Wednesday, a lawsuit was filed in U.S. District Court to invalidate Utah’s new law that seeks to protect children from instant accessibility to online pornography (while continuing to allow adults access). This bill follows suit with Louisiana, Arkansas, and Virginia’s recent passage of similar bills that require websites producing a substantial amount of pornography to put an age-verification check in place before a person is allowed access, and to ensure children aren’t accessing it. As to be expected, Free Speech Coalition, a trade company that represents the adult entertainment industry, filed the lawsuit with a slew of expected and desperate arguments seeking to invalidate this common-sense law to protect children.
You have to be somewhat skeptical of a complaint that starts off as snarky as this one saying, “Here we are again. After numerous federal court decisions invalidating as unconstitutional state and federal laws seeking to regulate or ban the publication of material harmful to minors on the internet, the Utah legislature has tried once more”. They’ve tried once more, because it remains a problem today, and state’s have learned from past attempts. The complaint is certainly referencing ACLU v. Johnson (1998), PSINet inc. v. Chapman (2003), American Booksellers v. Dean (2003) which all either involve blanket censoring requirements involving criminal penalties with no affirmative defense, or omission of the Court established Miller/Ginsberg obscenity definitions, and therefore are vastly different from the law in question.
The closest comparison we can draw to Utah’s law is Congress’ last attempt in the Children’s Online Protection Act which created civil and criminal penalties to publish material harmful to minors online without certain age-verification parameters. The law was struck down by the Supreme Court on grounds of there being least restrictive alternatives available to accomplish Congress’ goal. Nearly 25 years later from it’s passage, there are a few things to consider that show that age-verification technology is now the least restrictive means available.
First, nothing has changed in regards to childhood exposure to pornography, and if anything, it has gotten worse statistics show. Today, nearly 80% of teenagers between the ages of 12- 17 have been exposed to pornography, with the first exposure to pornography among men on average is 12 years old. Secondly, neither arguments or rulings of the time accounted for the explosion of internet access via mobile phone and tablet. For over a decade, mobile access has served as the primary viewing median for pornography online, so the solution suggested by the High Court to simply ‘move the home computer to the family room’ is pretty well obsolete.
Thirdly, reliance on filtering software as the final solution hasn’t worked to stop or slow the problem. The Court even suggested that “By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.” A prime example of how that reasoning has failed, is in 2018, when the Louisiana legislature passed a law that required public schools to promote free internet filters, and then four years later became the first state to pass this age-verification law in question showing that a massive attempt to promote filtering doesn’t satisfy the state legislature. Lastly, states have been crying out. Since 2016, seventeen states, through passage of resolutions, have declared pornography as creating a health crisis or hazard in their state calling for solutions at the societal level. We agree with Congressman Mike Lee of Utah that “age verification technology is now the least restrictive means for Congress to fully achieve its compelling government interest of shielding children from online pornographic content.”
The complaint filed seeks protection under federal law 47 U.S.C. 230 stating, “by treating website operators as the publishers of material hosted on their websites but produced by other content providers, the Act stands in direct conflict…and is therefore preempted by that supreme federal law.” The statute they are referencing in Section 230 is, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The complaint is attempting to make a platform website into a provider of an interactive computer service though the law defines “interactive computer service” as providing “access to the Internet.” In order for a person to upload content to a platform website, such as <JustFor.Fans> (a website operated by Plaintiff- JFF Publications, LLC), they would already have to have access to the Internet. This is a weak argument. Furthermore, when our team visited the above site mentioned, we were met with visual images that meet the definition of “material harmful to minors”.(1) The law doesn’t regulate Internet providers such as AT&T, Google, etc. (which is what it would have to do in order to violate “Section 230”) but rather offers protection (78B-3-1002-6). It would be interesting to see how they try and make that connection of publisher to provider under the scrutiny of the Defense.
They also attempt to invalidate the long-standing definition of “material harmful to minors” calling it “vague” and “overbroad”, though it is a definition approved by the Supreme Court, and has been used as a guideline for protecting children in numerous court decisions for decades. Obscenity is not a constitutionally protected speech,(2) and the High Court has approved variable concepts of obscenity, and specifically the definition of “material harmful to minors” (Ginsberg v. New York 1968) which is a derivative of the three-pronged definition of obscenity in the Court case Roth v. United State (1957). The complaint focuses primarily on the first prong by pointing to words they find as “vague”, yet omitting the second prong that provides clear and descriptive details that leave no room for imagination. Not even in the definitions affirming case, Ginsberg v. New York, did the plaintiff argue the validity of the definition,(3) yet the complaint has taken considerable liberty to do so. Furthermore, a State has the expressed right of the Court to adjust the definition of obscenity as it deems appropriate, to protect minors from harmful materials so long as an adult is granted access to constitutionally protected material.(4)
The complaint takes considerable time to argue the optional use of a “digital information card” as a means to comply with the age-verification requirements. Their argument essentially is that the “digital information card” may not be a permissible or available option of compliance to the law. What’s interesting is that the legislation allows for other options in order to comply, with the last option being “any commercially reasonable method…” as to say, “or any modern method that works to verify a visitor’s age.” Their argument is like being given the option of vanilla, chocolate, or “99 other flavors” of ice-cream, and complaining only the chocolate ice-cream isn’t available or doesn’t taste good. It just doesn’t make any sense, and is far-fetching.
The complaint also lends large attention to the cost and development of age-verification, though there’s an entire competitive age-verification market available in compliance to the law. On page eight, it states that Plaintiff Charyn Pfeuffer “is fastidious about ensuring that her fans are adults, she worries that her low-tech efforts do not meet the definition of ‘reasonable age-verification methods'” (though it doesn’t describe what her efforts are that are being used). And page 16 of the complaint fears the “great expense” entities will have to pay to develop age-verification platforms. It appears that the plaintiff didn’t dig far into their own argument. One company offers age-verification service for $20/month for unlimited websites, 150,000 views, and free installation, and there many other companies available and can be found through a simple online search.
The Free Speech Coalition has been filing lawsuits on behalf of the porn industry for decades, and this is another attempt to discredit a basic and common sense law to protect children from instant access to pornography. There is a lot to say in response to this case, and I hope that there will be an eager team at the helm of defense to pick this one apart. This case ought to be a slam dunk for the Defense.
Footnotes:
(1) We visited the justfor.fans website on May 28, 2023 and instantly we were met with models seductively posing, a nude man’s penis in plain sight.
(2) https://supreme.justia.com/cases/federal/us/354/476/
(3) Ginsberg v. New York (1968) 2. Obscenity is not within the area of protected speech or press, Roth v. United States, 354 U. S. 476, 354 U. S. 485, and there is no issue here of the obscenity of the material involved, as appellant does not argue that the magazines are not “harmful to minors.
(4) Ginsberg v. New York (1968) (a) The State has power to adjust the definition of obscenity as applied to minors, for even where there is an invasion of protected freedoms, “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.