RALEIGH, N.C. — A bill filed in the North Carolina state Assembly on Monday would impose new rules that industry observers warn could push adult websites and platforms to ban most adult creators and content.
HB 805, titled the “Prevent Sexual Exploitation of Women and Minors Act,” was filed by Republican Rep. Neal Jackson and co-sponsored by several other Republican Assembly members, as well as one Democrat.
The bill includes a requirement to verify performers’ ages and consent via a process that would significantly exceed federal record-keeping requirements under Section 2257. It would mandate explicit written consent for each individual sexual act in which a performer engaged during creation of the content, as well as separate consent for distribution of the content.
Existing federal law and VISA/Mastercard rules already require age and consent verification. However, under the North Carolina law, consent would have to be expressed using a consent form created or approved by North Carolina’s attorney general.
“If passed, this legislation could create havoc in the adult industry since online platforms and websites will not have the required documentation on hand for all of its previously published content,” noted industry attorney Lawrence Walters.
Further, anyone appearing in adult content would be entitled to withdraw their consent at any time, regardless of any legal contract they might have signed. The site or platform would then be required to remove the content.
“At the request of a performer, a pornographic image distributed or published by an online entity operator must be removed within 72 hours of the request being made, regardless of the age or consent of the performer,” the bill reads.
This provision would constitute a content-based invalidation of legal contracts not seen in any other industry or sector.
“This law attacks the model contract itself,” Free Speech Coalition’s Director of Public Policy Mike Stabile told XBIZ. “It would allow someone to withdraw from an agreement whenever they wanted. So someone could shoot for a platform, get paid — and revoke consent before the content was ever published.”
Requests to remove content could be submitted by anyone, not just persons appearing in the content. Each request claiming that age or consent verification was not properly obtained would trigger a mandatory review process.
However, the proposed law would also require sites to remove content “if any question arises” as to the consent of a performer. Since receiving a request claiming that age or consent verification was not properly obtained would appear to constitute a “question” arising, this provision could effectively put adult sites and platforms at the mercy of anyone seeking to force the site to remove content by barraging them with requests.
Violators would be subject to both civil and criminal penalties.
Industry attorney Corey D. Silverstein called the proposed measures “over the top.”
“One can only hope that this bill never becomes law, because it is littered with issues and could potentially be disastrous to adult website operators,” Silverstein told XBIZ. “This is one of the more aggressive attempts at speech and content suppression.”
The bill also fails to include any appeal provision for wrongfully removed material, which according to Walters could incentivize abuse of the takedown procedure by bad actors.
"The end result will likely be self-censorship of adult content by platforms to avoid the risks of substantial fines or potential jail time," Walters said. "Similar results occurred when FOSTA/SESTA was passed in 2018."
Stabile noted similarities between the new North Carolina bill and past legislative proposals such as Utah Sen. Mike Lee's PROTECT Act, as well as currently pending state bills in California and South Carolina, but cautioned that HB 805 is broader and includes provisions that make it more dangerous to adult creators.
“The bill is incredibly burdensome, as I suspect it’s meant to be,” Stabile said. “For instance, HB 805 would severely limit marketing, as it would require creators, affiliates and fans to submit similar paperwork every time they upload to X, Reddit, Discord or elsewhere — separately for every image on each platform. It would also require those platforms to build and maintain massive databases of creators’ IDs and legal documents.”
According to Stabile, these regulations are so burdensome that they could push sites to ban most adult creators and content, and could decimate creators’ ability to build an audience or interact with fans.
“I don’t think these are mistakes,” Stabile said, noting that the bill strongly reflects a proposal by right-wing think tank The Center for Renewing America, which has backed many of the age verification laws FSC has been fighting.
“They floated this type of legislation several years ago, as a way to attack the legal industry,” Stabile said.
In its 2022 publication “Combating Obscenity on the Internet: A Legal and Legislative Path Forward,” the Center for Renewing America suggested, "States (or the federal government) could pass statutes giving people a right of publicity in their naked bodies— and place very burdensome limits on alienating that right, perhaps prohibiting its permanent alienation or extending permanent rights of recission. Thus, a porn actress could not permanently sign away her rights to control images of her naked body to a porn company — but rather its right to distribute the movies in which she appears would be dependent upon her monthly approval."
Citing violations of the First Amendment, the Commerce Clause, due process and other laws, Silverstein opined that the law would not survive a constitutional challenge in its current form.
He also pointed out that the bill’s title seemingly implies that only women can be victims of exploitation or need protection.
“I’m offended by that suggestion and I suspect that many others will be as well,” he said.
Republicans control both chambers of the North Carolina state legislature, but the governor and attorney general are both Democrats. However, anti-porn laws in other states have found backing among members of both parties.
“Adult sites, of course, already verify age and consent for uploads,” noted Stabile. “But once again, the adult industry is the Trojan horse for passing broad censorship legislation. The industry is a strong partner in fighting CSAM and NCII. We have effective and workable solutions that should be emulated by mainstream platforms. But instead of being consulted by legislators, we're used as a bogeyman and attacked.”
