Age Verification Laws Cause for Concern in Adult Industry

Many of these bills are regarded as “copycats” of the controversial Louisiana age-verification law that entered into force on Jan. 1.

In the Louisiana bill, individuals who wish to view a porn site must now verify their age and identity by submitting a scan of a government-issued ID card. Platforms that don’t follow the new law could be subject to liability for exposing minors to adult content. The law creates civil action to encourage the parents of minors who have suffered from “corrosive” damage from viewing porn to sue these sites that don’t have age verification measures in place for compensatory damages.

Arkansas has introduced legislation similar to the Louisiana law. Senate Bill 66 would also levy damages against websites that do not enforce government ID checks. Stabile said that this version is “essentially a carbon copy” of the Louisiana bill and the percentage of adult content needed on a platform to implement ID checks is 23 percent or greater. The threshold is 33 percent in the Louisiana age verification law. Stabile and the Free Speech Coalition also note that legislators in Mississippi have introduced three bills in the state legislature that are “all roughly identical to the Lousiana law.”

One measure proposed in Oregon would replicate Louisiana’s law, as well. That measure would be enforced by the Attorney General’s office if it were to become law, however. Oregon State Senator David Brock Smith, R-Port Orford, introduced Senate Bill 257, which requires online porn site operators to employ government ID checks or face the wrath of the Attorney General via potential violations of Oregon’s Unlawful Trade Practices Act. A matrix published on the FSC website indicates that some of the penalties of these proposals include criminal, civil, or both.

Louisiana's new age-verification law is blatantly unconstitutional, but that hasn't stopped 4 other states from introducing copycat bills, and others from introducing unconstitutional bills of their own.

A short guide to the most aggressive censorship we've seen in decades: pic.twitter.com/iBcrr7y9NG

— Free Speech Coalition (@FSCArmy) January 28, 2023

While age verification for creators and producers on sites like Pornhub and xHamster isn’t as controversial, the heat comes as companies of all kinds in the adult industry hold very different positions on deploying user age verification policies and software for their particular sites.

One criticism of age verification laws is the likely unconstitutional attempt of a state government trying to regulate a group of companies or an industry that engage in interstate economic activity. Aside from the First Amendment concerns, age verification laws like those Louisiana has implemented appear to infringe on the Constitution’s commerce clause and the federal government’s right to regulate interstate commerce.

According to an analysis published by the nonprofit and nonpartisan National Constitution Center in Philadelphia, the commerce clause gives Congress and the federal government the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes.” The legal definition of commerce hasn’t evolved much over the decades. However, the courts have expanded the power of Congress to intervene and supersede on intrastate rules that significantly impact interstate commerce and levy commerce clause regulations accordingly.

Louisiana’s law, Act 440, was passed by both chambers of the Republican-controlled state legislature in June of 2022. Rep. Laurie Schlegel, R-Jackson, a religious sex addiction therapist who propagates the pseudoscientific “porn is a public health crisis”-theory, served as sponsor of the bill. She touts the bill as a bipartisan effort through both chambers of the legislature, but with one ‘nay’ vote against the total measure.

Rep. Mandie Landry, D-New Orleans, is that lone ‘nay’ vote in Act 440. The Center Square, a news wire service covering state legislatures, featured Rep. Landry in a report on the potential of a legal challenge against Act 440.

“The question is what is pornography or obscenity, who gets to decide, and how is that enforced?” Landry said. “So much of that is in the eye of the beholder.”

With reference to the interstate commerce concerns, Rep. Landry questioned further “how a state court [could] hold a company in another country (like Pornhub, which is based in Montreal) or state (like California) accountable” under the law. The internet and interstate commerce, Landry added, are generally the jurisdiction of the federal government.

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