The rise of internet age verification bills

Examining their impact on online freedom and First Amendment rights

Lesia Scotch | Envato Elements

As discussed in the April Pages of History newsletter, internet age verification bills are emerging nationwide. Several have been signed into law. According to the Free Speech Coalition’s May 28, 2024 update, “Bills in Alabama, Georgia, Kansas, Kentucky, Oklahoma, South Carolina, and Tennessee were enacted in the last two months, bringing the total number of states with age verification laws to 18.” The stated intent of age verification laws is to keep minors from accessing pornography sites. This, of course, is a reasonable effort. However, problems arise when a state attempts to define what constitutes “harmful to minors,” and First Amendment concerns emerge when website owners are compelled to limit or censor their content to comply with these laws.

Attempts to regulate access to specific internet sites are nothing new. However, most of the recent bills are based on a 2022 Louisiana law that creates a liability for websites that fail to regulate access in accordance with the state’s Act 440:

Any commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.

Defining “harmful to minors”

How do age verification laws determine what kind of content is harmful to minors? The laws are notoriously vague. The “harmful to minors” language in some of these laws is so broad that it might be interpreted to include nonsexual or artistic nudity or even discussion of specific topics that a state deems objectionable. It is worth noting that a graphic novel version of Anne Frank’s diary was banned in school districts in Texas and Florida in 2023, while a Tennessee school district pulled Art Spiegelman’s Pulitzer Prize-winning graphic novel Maus from its library in 2022. “Harmful” is an imprecise term, open to myriad interpretations.

The Tennessee law defines “harmful” as “text, audio, imagery, or video that exploits, is devoted to, or principally consists of an actual, simulated, or animated display or depiction of any of the following: Pubic hair, vulva, vagina, penis, testicles, anus, or nipple of a human body.” By this definition, a website that includes a cartoon with an image of a nipple could violate the state’s law if an acceptable age verification process is not in use.

Adding to the subjectivity of what constitutes “harmful” is the stipulation that 33-1/3% of the content on the website must meet a particular state’s definition of “harmful to minors” for the law to apply. In Kansas, a website might violate the law if material that meets the state’s definition of “harmful” appears on “25% or more of the webpages viewed on such website in any calendar month.” The way this content threshold is measured is left to the court to decide when a complaint arises.

Age verification methods

What represents a satisfactory age verification method varies by state. Some states with these new laws require the presentation of a government-issued photo I.D. to access an affected website. Bills in other states rely on third-party identity verification systems or perhaps the use of a credit card. Tennessee's verification process is the most complex. It requires “the matching of a photograph of the active user taken between the attempt to view content harmful to minors and the viewing of content harmful to minors, using the device by which the attempt to view content harmful to minors is being made, to the photograph on a valid form of identification issued by a state of the United States of America.” This means that a website visitor must submit a live photo taken by their phone or webcam and then submit an image of a government-issued I.D.—which must be matched—before access to the site may be granted. Notably, this verification process requires re-verification every 60 minutes a user is on a website.

Penalties

Many internet age verification laws allow private citizens to sue a website owner for damages. Kansas HB2592/SB394, whose enforcement begins July 1, 2024, penalizes violations of its law as follows:

Any person who could access a website without verifying such person's age in violation of this section may report such violation to the attorney general. Upon receipt of any such report, the attorney general shall investigate and may bring an action for injunctive relief to enjoin any continuing violation. In addition to any injunctive relief, such action may also seek to impose a civil penalty on the commercial entity of not less than $500 and not more than $10,000 for each such violation instead of the penalty provided for in K.S.A. 50-636(a), and amendments thereto. Each instance in which a website is accessed in violation of this section shall constitute a separate violation.

Tennessee’s SB 1792, which takes effect January 1, 2025, goes a step further and includes Class C felony charges for those found to violate the law, “punishable by a term of imprisonment not less than three years but no more than 15 years, and a jury is authorized to assess a fine no more than $10,000.” Additionally, guardians of a minor who accesses such a site may seek “statutory damages in an amount not less than $50,000.”

Responses to age verification laws

On April 12, 2024, the ACLU and the Free Speech Coalition asked the U.S. Supreme Court to overturn a lower court ruling upholding Texas’s HB1181. On April 30, 2024, the U.S. Supreme Court denied this request. The Free Speech Coalition responded with this statement:

While the Supreme Court has denied our application to stay the Fifth Circuit’s decision upholding age verification requirements in Texas, our petition for full merits review before the Supreme Court remains pending. We look forward to continuing this challenge, and others like it, in the federal courts. The ruling by the Fifth Circuit remains in direct opposition to decades of Supreme Court precedent, and we remain hopeful that the Supreme Court will grant our petition for certiorari and reaffirm its lengthy line of cases applying strict scrutiny to content-based restrictions on speech like those in the Texas statute we’ve challenged. We will continue to fight for the right to access the internet without intrusive government oversight.

Conclusions

While the effort to protect minors from accessing online pornography is entirely reasonable, the vagueness of age verification laws creates a potential legal problem for any website that includes nonsexual or artistic depictions of nudity – and perhaps even language describing nudity or other topics. Some of the laws incentivize private lawsuits, so a resident could conceivably sue a nudist organization or resort that includes images of nudity (or perhaps even language describing nudity) on its website if they are not asking for users to submit a photo I.D. or comply with another means of age verification, as well as maintaining records of these users as required by these laws.

Additionally, these laws create complex barriers for adult internet users, who may have privacy concerns related to uploading personal information to websites, which must be maintained for many years. The expectation is that many websites will self-censor or close access to states where the liability risk is too high. Indeed, websites like Pornhub have chosen to block access to Texas internet users.

While the case brought before the U.S. Supreme Court by the ACLU and the Free Speech Coalition plays out, naturists are encouraged to monitor these bills, stay informed of their progress and implementation, and be aware that failure of a website to comply with these laws could bring serious, potentially devastating civil or even criminal penalties. 🪐