Louisiana's Anti-Porn 'Age Verification' Bill Spawns Free Speech Concerns

Louisiana's Anti-Porn 'Age Verification' Bill Spawns Free Speech Concerns

BATON ROUGE, La. — A new state bill that would allow any Louisiana resident to sue any company for failing to implement age verification to prevent minors from accessing “pornography” has prompted concerns about religious conservatives’ use of state-level "lawfare" to undermine the landmark Reno v. ACLU Supreme Court decision.

As XBIZ reported yesterday, Louisiana’s HB142 was introduced by Rep. Laurie Schlegel (R-Metairie), whose background before entering politics was as a faith-based couples’ counselor and “sex addiction therapist.”

HB142, reported local news portal Baton Rouge Proud, would enable Louisianans to sue companies for failing to use a form of age verification where “adults would have to input their driver’s license or other state ID to prove they are over the age of 18.”

The bill, which would be the first “porn filter/age verification” law in the country to offer the option of “vigilante lawfare” to any citizen willing to sue a platform, passed out of the Louisiana House of Representatives Committee on Civil Law and Procedure without any opposition.

'Vigilante Lawfare' Against Adult Content

“Like Texas' SB8 ‘abortion bounty’ bill functionally ended Roe v. Wade, this proposed law in Louisiana is a back-door attempt to overturn Reno v. ACLU,” political essayist Brynn Tannehill, author of “Everything You Ever Wanted to Know About Trans” and "American Fascism: How the GOP is Subverting Democracy,” told XBIZ. “In 1997, the Supreme Court ruled in Reno v. ACLU that the federal Communications Decency Act was unconstitutional on free speech grounds [because] the act made it a crime for anyone to engage in online speech that is ‘indecent’ or ‘patently offensive’ if it could be viewed by a minor.”

Tannehill also expressed concern about the combination of such proposed “vigilante lawfare” and recent Republican campaigns to purge library books featuring a variety of material that they object to and classify as “pornography.”

“Because the Republican legislators consider anything LGBT-related to be obscene or pornographic, this would spell the end of anything LGBT-related on the internet,” Tannehill told XBIZ. “For example, it would empower Louisiana residents to sue Amazon for selling the book ‘Heather Has Two Mommies’ without first requiring a driver's license. Similarly, it would force The Trevor Project suicide hotline for LGBT youth to effectively prevent the people who need it the most from accessing their website.”

Last month, Florida Senator Rick Scott’s proposal for the first new Republican Party platform since 2014 included a section claiming there is an “explosion of pornography” and that a GOP administration “must defend the American family from societal elements that erode it” by reviving federal obscenity prosecutions.

In proposing the new bill, Louisiana state legislator Schlegel backed her claims about the supposed harms of “pornography” by quoting controversial statements by veteran anti-porn activist and former academic Gail Dines. Schlegel also repeated the widely debunked Christian conservative talking point of a supposed “public health crisis” around porn, which was deployed by several Republican officials between 2016 and 2020.

Adult industry attorney Larry Walters of the Walters Law Group told XBIZ that it is important to remember that as of now, “Reno v. ACLU was a unanimous Supreme Court opinion and is the law of the land.”

“Any inconsistent state law would be unconstitutional,” Walters warned.

“State attempts to impose age verification on adult websites have been consistently struck down for violating the First Amendment and the dormant Commerce Clause,” he explained. “There may be legal issues with demonstrating state action, with a statute that allows only private lawsuits. These issues are being considered with the similar Texas abortion law. Courts typically do not like laws that try to evade judicial review, but the issues are currently unsettled.”

Return of the Republican 'Porn is a Public Health Crisis' Panic

The actual text of HB142, as drafted by Schlegel, refers back to those pre-COVID “porn is a public health crisis” copycat resolutions passed by more than a dozen red states, following Utah’s pioneering example.

“As recognized in House Concurrent Resolution No. 100 of the 2017 Regular Session of the Legislature and Senate Concurrent Resolution No. 56 of the 2019 Regular Session of the Legislature,” Schlegel wrote into the bill, “pornography is creating a public health crisis and having a corroding influence on minors.”

“Due to advances in technology, the universal availability of the internet, and limited age verification requirements, minors are exposed to pornography earlier in age. Pornography contributes to the hypersexualization of teens and prepubescent children and may lead to low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior,” Schlegel wrote.

Pornography, Schlegel pseudoscientifically claims, “may also impact brain development and functioning, contribute to emotional and medical illnesses, shape deviant sexual arousal [sic], and lead to difficulty in forming or maintaining positive, intimate relationships, as well as promoting problematic or harmful sexual behaviors and addiction.”

Rather than define pornography, Schlegel’s bill lumps it into a vague “material harmful to minors” category, using a hodgepodge of subjective tests and standards while interpolating terms like “with respect to minors” seemingly at random:

(4) "Material harmful to minors" is defined as all of the following:

     (a) Any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.

     (b) Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors:

         (i) Pubic hair, anus, vulva, genitals, or nipple of the female breast.

         (ii) Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals.

         (iii) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.

     (c) The material taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

(5) "Minor" means any person under the age of eighteen years.

The bill is being currently considered by the Louisiana legislature and is considered likely to pass.

Main Image: Louisiana State Rep. Laurie Schlegel (R-Metairie).

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