SANTA FE, N.M. — A New Mexico state legislative committee on Friday sent the conservative Republican sponsor of new age verification legislation back to the drawing board, citing concerns about the proposed bill’s effectiveness and practicality.
State Representative John Block’s HB 44, the Protection of Minors from Distribution of Harmful Materials Act, is a copycat version of the age verification bills being promoted around the country by religious conservative activists. It would require any site on which more than one-third of the content is deemed harmful to minors to verify the ages of users before allowing access and would allow civil suits as the method of enforcement.
Both Democratic and Republican members of the House Commerce & Economic Development Committee raised issues with the bill, however, in a committee session that highlighted the same legal, technical, and privacy concerns that free speech and privacy advocates have consistently raised in connection with other age verification bills around the country.
Free Speech Coalition (FSC) Director of Public Policy Mike Stabile appeared in person to testify against the proposal. He warned of the chilling effect of such legislation on free speech, as well as the ineffectiveness of site-based age verification compared to device-level controls such as those mandated in North Dakota’s SB 2380, another recently proposed age verification bill, which FSC supports.
Tatiana Prieto of the ACLU of New Mexico also spoke against the bill, noting that it would require users to upload personal data, which would threaten online privacy and safety.
“Parents already have the tools they need to keep explicit and harmful content away from kids, such as built-in parental controls,” Prieto told the committee. “Rather than infringing on constitutional rights, we should focus on educating parents about these existing solutions. Allowing loosely regulated surveillance of our online activities is dangerous.”
In its analysis of the bill, New Mexico’s Office of Broadband Access and Expansion stated — under the heading “Significant Issues” — “This bill may conflict with the First Amendment.”
The New Mexico Department of Justice went into more detail in its analysis, noting, “Potential constitutional issues involved in HB 44 are unresolved at this time” in reference to the Supreme Court’s pending decision in Free Speech Coalition v. Paxton, the FSC-led challenge to a ruling by the 5th Circuit Court of Appeals over Texas’ age verification law, HB 1181. Oral arguments in that case took place Jan. 15.
“If the Supreme Court were to affirm the 5th Circuit, HB 44 would likely also withstand similar constitutional challenges,” the New Mexico DOJ analysis noted.
Representatives of other New Mexico groups shared their concerns that the legislation could also block access to important sexual health information and LGBTQ+ resources in the state.
Rep. Janelle Anyanonu expressed concern about the broadness of the language in the bill. She called the bill’s definition of explicit material “extremely subjective” and asked Block to clarify what metrics would be used to determine that harmful material constitutes one-third of a website’s contents, since that provision could be interpreted to refer to anything from number of videos to file size or content hours.
Block seemed to struggle in replying, suggesting that it would ultimately be obvious what sites are or are not “porn sites.”
“A third of the Bible is not pornography,” he offered at one point.
Other committee members questioned the efficacy of relying on civil suits as the enforcement mechanism — a strategy that proponents of similar bills in other states have adopted specifically to avoid potential legal wrangles over state enforcement.
Block cited the fact that Pornhub has shuttered operations in states that have passed similar legislation as proof that such bills work, claiming it demonstrated that the company does not want to make the effort to protect children. He was contradicted, however, by Rep. Linda Serrato, who argued that Pornhub’s decision more likely demonstrated that the language in those bills was too broad and made compliance too difficult.
“I understand the intent of this,” she told Block. “I do have serious concerns about implementing this — about the effect on law-abiding adults and what they decide to view content-wise.”
Other committee members concurred that while the aim of protecting children is admirable and something everyone could agree upon, the bill as presented was too flawed and required significant revision.
Block agreed to rework the bill before bringing it back before the committee.
