LOS ANGELES — The Free Speech Coalition conducted a public webinar Tuesday to help adult industry stakeholders understand the Supreme Court’s recent decision in FSC v. Paxton, and its potential implications.
More than 100 attendees logged on for “Unpacking the Supreme Court Decision on Age Verification,” which featured FSC Executive Director Alison Boden and FSC Director of Public Policy Mike Stabile offering what the industry trade organization billed as “a discussion about what the decision means for age verification laws across the United States and what the path forward looks like for the adult industry.”
During the session, Boden and Stabile recapped the court’s decision, touched upon some of its most immediate implications and responded to questions submitted by attendees via chat.
No Safe Harbor
Boden kicked off the session by asking Stabile, “Did you see this coming?”
Describing himself as a “Chicken Little” due to his readiness to expect the worst, Stabile admitted that he was not greatly surprised, but also said emphasized that the decision “makes no sense.” He called the ruling “a political decision” arrived at via “tortured logic.”
“It is a decision that was written… with a goal in mind,” he said. “They had their minds made up.”
“I think that this will go down as a tremendously horrible, censorious decision,” he added.
After reviewing the various steps that brought the legal challenge to its Supreme Court denouement, Boden stated that the case is “essentially over.”
“Every law that is substantially similar to this one is going to be constitutional from now on,” she cautioned.
Stabile elaborated on the mechanism of the ruling: the application of “intermediate scrutiny” to AV laws, rather than “strict scrutiny,” the more rigorous standard historically applied to protected speech. He described how the focus on material that is legal for adults but “harmful to minors” has enabled state legislatures — and now the Supreme Court — to rationalize applying the lesser standard, paving the way for laws that are more restrictive.
Stabile also warned that while some AV laws specify that a minimum percentage of adult material on a site is needed to trigger application of the law, other versions apply to any amount of adult content, giving states and private parties “a wide berth to go after this type of content.”
In addition, Boden pointed out, while early AV laws specified that they applied to commercial sites and platforms, more recent laws do not include that restriction.
“What does it all mean?” she reflected. “It means that you need to be compliant with AV laws right now. AGs in many states are now even more emboldened to come after websites. They don’t care how big the websites are. It can be a tiny website that just sends affiliate traffic.”
Boden also noted that, since the court did not connect AV laws’ constitutionality with content thresholds — such as the “one third” rule common in state AV laws, which defines covered platforms as those hosting at least 33 1/3% material deemed harmful to minors — she thinks it likely that the decision will give rise to a spate of bills targeting the industry and sexual speech online more generally.
Responding to a participant’s question about whether sites are liable in cases where they are unaware of a user’s IP address — since AV laws apply in some states but not others — Stabile emphasized that adult companies should not expect easy access to any “safe harbor.”
“Don’t expect protection,” he advised. “Do your best to try to cover your ass. That may be geoblocking a state, that may be doing some sort of AV … If somebody uses a VPN and gets onto your site in Texas, could you be sued by the AG? Sure.”
Boden added that some state AGs have already gone after sites that did implement age verification.
“Ultimately, if they want to go after you, they’re going to go after you,” Stabile said.
Boden touched briefly on available age verification methods, noting that these vary by state and around the world.
“Many states will allow you to use ‘any commercially reasonable method,’” she said. “But what’s commercially reasonable is still very much up for debate.”
“Make sure, especially in extremely hostile states like Kansas, you are doing something to protect yourself,” Boden reiterated.
Responding to a participant question about potential liability for posts on social media, Boden advised attendees, “Think hard about what you are posting. I’m going to caution you not to work with platforms that don’t age verify. Having your content posted there may be a liability for you.
“If you’re hopeful that you’re not going to be targeted by this law, I would caution you to just assume you will be, and act accordingly,” Boden added. “If you need a lawyer referral, let us know. FSC is happy to make referrals no matter the size of your business.”
“There is liability for everybody,” Stabile noted, adding that while FSC has not yet seen legal action taken against creators, sex workers or fans who post on social media, that does not reliably indicate safety in the long term.
Another participate asked about “SFW” pages as a protective measure.
“If it’s possible that a minor could see something that is sexual, then it’s risk reduction but it’s not a silver bullet,” Stabile cautioned.
Boden strongly advised all sites to update their privacy terms.
“Not only do you need to cover whatever third party you are using to do AV, but you need to make sure your arbitration clauses are ironclad,” she stressed. “If somebody in a state with a private enforcement law tries to sue you, you are better off in arbitration.”
Stabile warned, “When you walk into court, you’ve already lost.”
‘This is the start of something’
Boden next asked Stabile, “Is this over?”
Stabile responded that while the constitutionality of AV laws has been decided, the issue is far from settled, with the next key question being “How far can they go?” Emboldened by the court’s decision, he said, legislatures are likely to push further by imposing “laborious and burdensome requirements” to inhibit adults’ access to pornography.
Stabile cited a law in Tennessee that imposes criminal penalties on website operators unless they verify users’ ages repeatedly, every 60 minutes.
“Could Tennessee say, ‘Well, we’re going to make them reenter every 60 seconds?’” Stabile posited. “These laws were explicitly used to go after adult sites. They’re not going to be happy with just age verification.”
Boden and Stabile expressed certainty that anti-porn groups and lawmakers will attempt to “push the envelope” against the adult industry even more, in the wake of the Supreme Court’s ruling in FSC v. Paxton.
“They have been explicit from the beginning that these laws are meant to put the industry out of business,” Stabile affirmed. “We’re going to start to see, given the composition of the court … challenges to the legality of adult expression in general.”
This could include efforts to expand the definition of obscenity, Stabile speculated. Noting the avowed Project 2025 goal of criminalizing adult content and “throwing pornographers in jail,” he compared the situation to obscenity prosecutions in the 1980s and 1990s, when companies were hit with multiple lawsuits in multiple states and thereby driven out of business.
As examples of this strategy, Stabile cited an extreme bill that recently passed the North Carolina state legislature, which would effectively invalidate model releases and contracts, as well as Utah Sen. Mike Lee’s proposed Interstate Obscenity Definition Act, which would redefine almost all visual depictions of sex as obscene and therefore illegal. Stabile said that the point of the latter bill is to “rewrite the rules” in order to make it easier to prosecute obscenity cases.
“There’s going to be more fights to come,” Stabile said. “We’re going to need the industry to rally.”
“This is the start of something,” Boden agreed.
The Road Ahead
The question now facing FSC, Boden said, is: “What can we do for our members, for the industry?”
The immediate goal, she said, is helping members and industry stakeholders figure out what to do right now, to “minimize chaos.”
Part of that, Stabile explained, is to define “sensible limits” on AV laws so that anti-porn legislators cannot keep chipping away at adults’ right to access protected speech, and to push for a consistent standard for AV compliance rather than a patchwork of laws.
Boden noted, “It’s very difficult at this point to figure out if what you are doing in one state will cover you in another.”
FSC she said, will work to determine “the quickest and most effective possible way” to make the new legal landscape viable for adult companies and creators. For instance, she said, FSC plans to prepare a written guide to age verification laws and compliance. The organization will also be devising a legislative strategy to “harmonize” AV laws around the country, including lobbying at the state level to get amendments passed to existing AV laws.
“One of my to-dos is ‘Rethink our entire legislative strategy,’” she admitted wryly.
Raising public awareness is high on the list for FSC going forward, Boden said. Noting that age verification providers as a group are anti-adult, with some even funneling money directly to anti-porn groups, she also posited FSC potentially introducing its own age verification system, “so that we are not funding our enemies.”
Asked whether some AV providers being FSC members might constitute a conflict of interest, Boden responded, “I’m very open to member feedback on that.”
Boden further advised sites that have not yet implemented age verification to consider blocking users in states that have AV laws.
“If you would like to use our tools, they are available for you,” she offered. “If you need to essentially redirect folks to another page, we have state redirect pages that explain, ‘I’m sorry, we’re blocking you because your state has passed one of these laws and we can’t support that at this moment.’”
While the Supreme Court decision settled the overall constitutionality of AV requirements, Boden noted, the devil may yet be in the details — details that will only be hammered out in the course of future legal challenges and court battles determining new precedents.
“It’s very frustrating,” she admitted. “The law as written might mean what it says, but if it’s unclear, if it hasn’t been litigated yet, then it could mean something different.”
Stabile made a point of reminding attendees, “We are not lawyers,” and urging them to talk to a lawyer when in doubt.
“We will be providing FAQs and guides as we can,” he said. “But you have to talk to an attorney.”
Boden and Stabile stayed on the webinar for some time beyond its official conclusion, in order to address more questions from participants. They also urged attendees to ratchet up their involvement and advocacy.
“Talk to other people in the industry about what’s happening and about the work that we have to do,” Stabile said. “We need to be together more than ever.”
Stabile added that he has been reaching out beyond the industry as well, having conversations with other groups likely to be impacted by the upshot of the court’s decision, such as LGBTQ+ groups, libraries and social media.
While the “harmful to minors” label theoretically applies to adult content, he noted, it is already being leveraged across the country to restrict drag shows, library books and even Pride displays at Target. Going after porn, Stabile said, is a Trojan horse for going after many other forms of expression. He noted that South Dakota’s AV law, which went into effect Tuesday, could even be interpreted as applying to marketing adult products on Amazon or posting adult content on X.
In the course of his outreach, Stabile said, he has encountered varying degree of responsiveness on the subject of allying with the industry against impingements on free speech.
“I think they are going to be a lot more open to it now,” Stabile predicted. “I think they understand that this ruling by the court was so broad that it opens the door to so many different things.”
Wrapping up, Boden told attendees, “This has been a really difficult loss for us. We fought hard. And frankly, it’s easier to lose individually for me, than to lose on behalf of this industry.”
She promised, however, that FSC will continue to stand up for the industry.
“We can’t thank our members enough for giving us the opportunity to defend this industry and protect the rights of our customers and ourselves to do business — and to have fun jobs and enjoy our lives,” she said. “Please do reach out. Share your thoughts. However we do move forward, it will be with the industry’s best interests at heart. And we’re going to fight as hard as we can.”
