Industry stakeholders and free speech advocates have anxiously been awaiting the Supreme Court’s decision in Free Speech Coalition v. Paxton, which could significantly impact state age verification laws around the United States. In the meantime, state legislatures continue to weigh and pass AV bills, the U.K. and the EU are moving ahead with their own AV mandates and strategies, and legal challenges continue to play out in U.S. courts — with some cases on hold pending the SCOTUS ruling in Paxton.
This roundup provides an update on the latest news and developments on the age verification front as it impacts the adult industry.
Arizona Governor Reverses Stance, Signs AV Bill
This week, Arizona Governor Katie Hobbs signed HB 2112, mandating age verification for adult sites, into law. Last year, the governor vetoed a nearly identical bill, HB 2586. At the time, Hobbs stated, “While we look for a solution, it should be bipartisan and work within the bounds of the First Amendment, which this bill does not.”
While the new bill does not appear to address First Amendment concerns any differently, enough Democrats in the state legislature supported the measure this time around to provide some political cover for the governor’s flip-flop — including several legislators who also flip-flopped, having opposed HB 2586 last time.
It is possible that the governor and the Democratic representatives were responding to a perceived shift in the political climate in the wake of Donald Trump’s electoral victory. As Free Speech Coalition’s Mike Stabile noted in a recent statement, “We are well aware that the optics of voting against these bills is difficult for policymakers.”
New AV Laws Target App Stores, Social Media
A recent surge in state and federal age verification legislation targeting social media platforms, app stores and device manufacturers has brought the conversation over balancing child safety against free speech and privacy rights into the mainstream to a greater degree than ever before.
Some of these proposals are being promoted as being more effective than site-based AV. However, adult sites should not expect existing AV laws to be replaced or nullified due to the addition of device- and app store-based AV requirements. Nor do the legal defeats of some of these new laws indicate good news for those hoping to see similar court decisions against site-based AV laws.
That is for three reasons:
First, legislators have begun to recognize that no AV solution is 100% effective, which is one reason why site-based AV bills have begun to include specific provisions intended to address circumvention via the use of VPNs and other strategies. Lawmakers have therefore begun talking about the need for “multilayered” age assurance. For instance, Michigan is currently weighing both site- and device-based AV bills. From the legislators’ point of view, the more AV laws at various intervention points, the better — especially since many legislators attack “Big Tech” almost as vociferously as they attack the adult industry, making this approach win-win for them.
Second, site-based laws targeting adult content are intentionally punitive and performative, allowing legislators to position themselves as protectors of children and foes of the insidious porn industry. There is little or no political cost to them for continuing such campaigns, irrespective of effectiveness.
Finally, recent judicial rulings against laws targeting social media platforms, app stores and device makers, in states like Ohio and Arkansas, have cited the issue of restricting access to protected speech. Although adult content is also protected speech, these recent cases are not focused on content universally considered harmful to minors in the way that online adult content is. The states’ interest in preventing harm to minors is therefore on stronger legal ground in cases specifically involving adult sites than it is in cases involving, for instance, requiring parental consent for minors to access mainstream social media platforms.
The key issue for adult sites remains whether the Supreme Court will rule, in Free Speech Coalition v. Paxton, that site-based AV laws merit “strict scrutiny,” a question the court is expected to decide within a matter of weeks.
Other Updates
Below are some other AV-related news items, including updates on recent XBIZ reporting.
Ofcom Cracking Down: As XBIZ reported last week, U.K. media regulator Ofcom has begun investigating adult sites for alleged failure to comply with age assurance requirements under the Online Safety Act. The agency announced actions involving Itai Tech Ltd. and Score Internet Group LLC. This week, Ofcom announced actions involving another company: Kick Online Entertainment. However, those actions relate to issues other than age verification — specifically, alleged failures to conduct a requisite risk assessment and to respond to requests for information.
EU Moves Closer to Union-Wide AV Standard: Earlier this week, XBIZ also reported on the European Commission’s new draft guidelines on protecting minors online under the Digital Services Act, including age verification requirements covering adult sites and platforms. The Commission is seeking feedback on the proposed guidelines through a targeted public consultation, prior to publication of the final guidelines by this summer.
Missouri AG Continues End Run Around Legislative Process: Missouri Attorney General Andrew Bailey, who last month alarmed legal observers by unilaterally announcing a new state regulation requiring adult sites to implement age verification of users, has taken the next step in that process by posting the proposed new rule to the Missouri Register. No public hearing is scheduled on the matter, but public comment on the proposed rule can be submitted to the Attorney General’s Office before June 14 by email at regulations@ago.mo.gov.
NCOSE Backs Kansas AV Lawsuits: As XBIZ reported, anti-porn lobby group NCOSE has taken advantage of Kansas’ AV “bounty law” in order to promote a lawsuit against four adult sites.
More AV Bills Go Down: New York’s proposed AV bill, S 3591, has died in committee, while Missouri’s HB 236 was dropped from the state House calendar this week.
