PIERRE, S.D. — South Dakota Governor Larry Rhoden has signed into law a bill imposing criminal charges on sites that fail to verify users' ages before providing access to adult content.
The governor’s office has confirmed that the governor signed the bill at a private signing ceremony Thursday morning.
“As parents, we just want to protect our kids,” said Rhoden. “But technology moves so fast that it often seems impossible. I signed a bill to require age verification by websites containing material that is harmful to minors. I will continue to find ways to keep South Dakota safe for our kids.”
South Dakota is the 20th state to pass an age verification law. While most state AV laws make violations actionable solely via civil suits, however, violating HB 1053 is a Class 1 misdemeanor, and any subsequent violation constitutes a Class 6 felony.
Another difference between the new South Dakota law and the other AV laws and bills being promoted around the country by religious conservative activists is the delineation of what sites and platforms are covered.
Most AV bills are copycats or variations on the original Louisiana law that sparked the age verification legislative trend, and define covered platforms as those on which one-third of content is considered “harmful to minors.” In South Dakota, however, covered platforms are websites “for which it is in the regular course of the website's trade or business to create, host, or make available material that is harmful to minors.”
State Representative Bethany Soye, who sponsored the law, promoted this provision as a way to address the vagueness of the one-third standard and the potential loopholes it leaves open. Soye also argued that the “regular course” model is much more likely to be upheld in court.
A recent debate in the South Dakota state Senate Judiciary Committee focused largely on which piece of AV legislation could best withstand potential legal challenges.
Tennessee’s AV law, the Protect Tennessee Minors Act, also imposes criminal liability. That law took effect in January following the 6th Circuit Court of Appeals’ decision to lift a district court’s preliminary injunction against enforcement. The injunction was imposed as a result of a legal challenge by Free Speech Coalition and co-plaintiffs.
"Another day, another state disregarding First Amendment protections by enacting an age verification law," industry attorney Corey D. Silverstein told XBIZ. "This time, South Dakota’s lawmakers have passed a statute that conflicts with established case law and ignores the pending Supreme Court decision that may upend Texas’ approach."
Free Speech Coalition et al. v. Paxton, the industry trade organization’s challenge to Texas’ AV law, is awaiting a decision from the Supreme Court on what standard of review should apply to such laws, which aim to protect minors but in the process burden adults’ access to protected speech. A lower court applied only the “rational basis” standard, whereas FSC, its fellow plaintiffs and free speech advocates maintain that the highest level of judicial review, “strict scrutiny,” must apply in such cases.
Silverstein also observed that the South Dakota’s law inclusion of criminal liability makes a constitutional challenge "all but inevitable."
The law takes effect July 1, which Silverstein noted gives website operators "just a few months to decide how to handle South Dakota users and avoid potential liability."
