CONCORD, N.H. — A bill in the New Hampshire state legislature, aimed at requiring adult sites to age-verify users in that state, contains a provision that seemingly contradicts the Supremacy Clause in Article VI of the U.S. Constitution.
Prefiled this week by Democratic state Sen. Tara Reardon and scheduled to be officially introduced Jan. 7, SB 648 would require operators of commercial websites on which more than one-third of total content is “material harmful to minors” to implement age verification measures.
While similar to numerous other state AV laws and bills, SB 648 also includes language reading, “A commercial entity shall not claim Section 230 immunity under the federal Communications Decency Act as a defense in any civil action arising from a violation of this chapter.”
According to industry attorney Lawrence Walters, that language would, itself, likely be preempted by Section 230.
“Section 230 is a federal law and therefore superior to inconsistent state law under the Supremacy Clause of the U.S. Constitution,” Walters told XBIZ. “The legislators and their legal staff should know better, as these are basic concepts of federalism.”
The section in question may have been inserted in the bill in response to Pornhub’s recent citation of Section 230’s definition of “interactive computer service” as exempting it from enforcement of Ohio’s recently enacted age verification law. As XBIZ reported in October, the Ohio law includes a section exempting interactive computer services from its AV mandate.
The New Hampshire bill, however, includes no list of exemptions and no mention of interactive computer services, so it is unclear what relevance Section 230 might have in this case. The reference to Section 230 may therefore indicate the drafters’ basic misunderstanding of both Pornhub’s apparent exemption from the Ohio bill and the relationship between state and federal law.
As XBIZ has previously reported, legal and technical missteps are not uncommon when age verification bills are drafted and debated. Considering that many states and countries use Pornhub as a bellwether and prime target when enacting AV laws, Ohio’s exemption of a category that includes the site seems to have been one such error.
As in numerous other states, compliance with the proposed New Hampshire law would be enforced by civil lawsuits, which could be brought either by the state attorney general or by the parent or guardian of a minor who accesses adult content on a site lacking age verification. State suits could incur penalties of up to $25,000 per violation, while individuals’ suits could incur statutory damages of up to $10,000 per violation, in addition to court costs and attorneys' fees.
Once officially introduced, the bill will first be assessed by the New Hampshire Senate Judiciary Committee. If ultimately passed, the measure would take effect Jan. 1, 2027.