Republicans Are Coming to Take Your Porn (Again)
Utah residents attempting to visit Pornhub this month were greeted with a video message from adult performer Cherie DeVille, who explained why they could no longer access the site: their state had just adopted a law requiring age verification every time an internet user wants to view “material harmful to minors.” Rather than comply with this requirement, the site had simply blocked Utah’s entire population.
“While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and, in fact, will put children and your privacy at risk,” DeVille says in the message. “Until a real solution is offered, we have made the difficult decision to completely disable access to our website in Utah,” she later explains, urging the viewer to contact their representatives to protest the measure.
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But Utah is only the latest state to institute a new obstacle to viewing porn online. Louisiana passed a similar law last year. Mississippi and Arkansas have approved their own versions of such legislation, which will take effect in July for both states. Virginia Gov. Glenn Youngkin may soon sign yet another Republican-sponsored bill on age verification — the likes of which have been introduced in more than a dozen more state legislatures this year.
First Amendment and internet freedom advocates warn that these laws, framed as common-sense safeguards for children, are in fact part of a broader effort by the Christian right to ban or censor protected speech. Some GOP lawmakers aren’t being shy about it, either. “I would love to outlaw it all,” Arkansas State Sen. Tyler Dees, sponsor of that state’s age law, has said of porn. That attitude is also reflected in conservatives’ sweeping efforts to prohibit drag shows and purge school libraries, which are likewise couched as part of a campaign to shield children from imagined dangers. Vehemently anti-porn organizations including the National Center on Sexual Exploitation, which was founded as a religious group and has a history (under its previous name, Morality in Media) of opposing LGBTQ rights, have been instrumental in pushing for age verification on adult websites: NCOSE even drafted some of the language that eventually found its way into the Utah law.
“I think that the overall goal is to shut down [free speech on] the internet,” says Mike Stabile, a journalist, filmmaker, and director of public affairs for the Free Speech Coalition, a trade association of the adult entertainment industry that has filed a legal challenge to Utah’s anti-porn law. “Conservatives have been trying to do this for decades,” he explains, dating back at least to the Supreme Court case Reno v. American Civil Liberties Union in 1997, when the justices ruled that provisions of a law that criminalized online porn “available to a person under 18 years of age” were unconstitutional, as as they violated the guarantee to freedom of speech. FSC’s lawsuit argues the Utah law is no different.
In a press release, the organization points out that parents using device filters to limit what their children see on the internet is a far more practical and effective means of protection — and that “Utah does not currently have the capability to verify digital IDs online,” making compliance impossible. However, Stabile believes the implications of the controls set there and in a handful of other states span far beyond the technical privacy nightmare of submitting your ID every time you log on to Pornhub: the language of the law is broad and vague enough that it could be applied to a vast swath of websites, including social media networks. A commercial entity is liable if 33.3 percent of its content is deemed harmful to minors, but “nobody knows what that means,” Stabile says. “How do you measure it? Is it in posts, is in bytes, is in the amount of data? Is it in the volume? We just have no idea.”
As a consequence, Stabile says, many web-based businesses could be at risk. He points out that the co-plaintiffs on the Utah suit includes a sexual educator worried about their exposure: “Their content is meant for people who are 18 and it is medically validated writing. It’s not meant to be prurient in any way.” Along the same lines, the law could be used to set barriers around other information conservatives don’t like, from abortion resources and birth control instruction to facts about LGBTQ identities, on the grounds that it’s hurting kids.
We're joined in the suit by journalists and content creators like @RynPfeuffer, sex educators @abarrica of @odotschool, attorneys, erotica authors and platforms like @JustForFansSite. These laws don't just go after porn, they go after all sorts of sexual expression.
— Free Speech Coalition (@FSCArmy) May 4, 2023
Kevin A. Thompson, an attorney who practices trademark, copyright, and internet law in Chicago agrees that the 33.3 percent standard “could be applied more broadly in the future.” He also raises the issue of sensitive data falling into the wrong hands. “The more third parties that store personal information such as ‘digitized verification cards’ are more subjects for potential data breaches, in my opinion,” he says. Louisiana’s age verification apparatus, which has been called a “privacy time bomb” in tech media, has already led to cases of identity theft by scammers “impersonating sites,” Stabile claims.
Despite concerns that too many web pages besides the likes of Pornhub could be gated by these laws, Louisiana State Rep. Laurie Schlegel maintains that her state’s legislation, which she authored, will only be used to regulate select sites. “The age verification law that we passed last year was carefully drafted after considering U.S. Supreme Court precedent and the current available technologies,” she tells Rolling Stone. “It is narrowly tailored, not unduly burdensome to adults and takes into account the government’s compelling interest to protect children.”
But whatever the ease or difficulty of legally accessing porn under these systems, they also create a record of the sites you’re visiting. “You have to submit your government ID, and that system has to ping a government entity,” Stabile says. (Louisiana, for example, uses a state-wide digital ID system called LA Wallet.) Between the knowledge that Big Brother is looking over your shoulder and the practical hindrance of verifying your identity, people will be more inclined to avoid walled-off sites altogether, Stabile argues, particularly if they are fearful of their family or community finding out they’re looking up certain health topics or exploring their sexual orientation and gender identity. “This type of information is incredibly, incredibly powerful,” he notes. “We see it used in custody cases, we see it used in divorce cases, we see it used in extortion cases, and job loss, and all the rest of it.”
John Morris, principal of internet policy and advocacy at the Internet Society, which advocates for an “open, globally connected, secure, and trustworthy” web, says that legislators and regulators are increasingly proposing age verification mandates not just for porn, but “in a broad range of contexts.” These bills, according to Morris, “raise serious concerns about security, privacy, and access to lawful content and services online,” and will lead to “a rise in identity theft and other invasions of privacy as a result of the increased risk of hacking into corporate databases.” Moreover, he says that onerous ID requirements like the one imposed in Utah are “tantamount to effectively outlawing any covered sites.”
The question then becomes how far conservatives will go. “Porn is really the canary in the coal mine of free speech, and always has been,” Stabile says. Once they’ve got standards in place about “material harmful to minors,” they’re free to define such content however they prefer, and conservatives have a long record of taking offense at a wide range of speech. Meanwhile, any parent will have legal grounds to sue a website they believe has influenced their child to act or present in ways that upsets them.
What gives away how “disingenuous” these laws are, Stabile says, is that they’re less effective than existing options like parental device filters. “Ultimately, it’s not really about the kids, right? It’s about banning it for everybody,” he says. “If there was a magic wand that could keep under-18s off of these sites, every adult site would use it. We come from families, we don’t want kids on our sites.”
Instead, critics say, policymakers are using the safety of children as cover to appoint themselves arbiters of what Americans generally are allowed to see and share online, and could end up cracking down on sex toy shops, steamy fanfiction, or digital lifelines for vulnerable young queer and trans individuals. When the porn companies take states to court to debate the constitutionality of this invasive overreach, they’re not only declaring their right to freely sell adult content — they’re fighting to ensure that Republicans can’t widen the scope of what is considered obscene. It’s as clear and crucial a front as we have in this all-consuming culture war.
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