Louisiana First State To Enact Age Verification Requirements For Pornography Sites
Strauss/Curtis
Louisiana was the first state to implement a requirement for pornography sites to check the ages of their consumers or also referred to as an age verification bill. The first one to be made in the country.
There are currently laws that those under the age of 18 are unable to purchase physical copies of pornography such as DVDs and magazines and now this Act makes it so that in Louisiana, you cannot purchase online pornography until you verify that you are 18.
Act 440 was created and passed in order to restrict the access of pornography for children. This would force pornography sites to make their users show proof of driver's license or other government ID to a third-party website to show proof of age.
Starting being implemented this year, the main concern for this law in Louisiana is privacy issues for consumers. The information to be able to access pornography websites would come from a third party website. People are concerned about their information being shared due to either data breaches or due to third-party data brokers that can purchase information for their own benefits.
The law specifies that the third party companies must not retain or share the information that they are provided. If they are to collect your information, consumers have to show that damages have been done in order to take the company to court. The issue with taking the company to court is that it is incredibly difficult. If a company is based outside of the United States, it is even more difficult to bring them to court.
The Act covers corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships and other legally recognized entities that operate a website containing at least one-third “material harmful to minors.”
The law began taking effect on January 1, 2023 after being signed into law by the Governor on June 15, 2022.
Update in the Bill
In early June, the Louisiana state legislature passed a bill unanimously that would give the Louisiana attorney general the power to investigate pornography sites and on top of being not compliant with the states decision, the attorney general can fine those that are not up to date with Act 440.
Originally the wording of the Act was that websites that are not compliant are “liable to an individual for damages resulting from a minor’s accessing the material, including court costs and reasonable attorney fees as ordered by the court.” There were also similar penalties for the third party sites that retain or give out the users personal information.
Websites would be fined up to $5,000 a day if they are not in compliance with the verification of the age of consumers. For any companies or websites that are knowingly not following the protocol, they will have an additional civil penalty of $10,000 per violation.
Republican Rep. Laurie Schlegel who wrote the original age verification law as well as the companion law stated that both pieces were created with the intention of protecting children from the dangers of online pornography.
Challenges to the Bill
An adult entertainment group filed a lawsuit against the law in Louisiana but was thrown out by a judge in early October. Those in opposition of the law say that they will most likely appeal this decision.
U.S. District Judge Susie Morgan in New Orleans’ decision was that the state officials that were directly named in the lawsuit cannot be sued due to the fact that they do not have a duty to enforce the act. Morgan stated that having the injunction against these officials would not prevent people from suing content providers who fail to verify their viewers’ age.
Those named in the suit are Attorney General Jeff Landry, Safety and Corrections Secretary Jimmy LeBlanc and Commissioner of Administration Jay Dardenne.
The reason for this lawsuit is freedom of speech violations that coincide with the law as well as believing that the law puts a burden on content creators who do not need to control their materials as a replacement for depending on the parents of the children to know what material their children are consuming online.
"We, of course, support keeping minors from accessing adult content, but allowing the state to suppress certain speech by requiring invasive and burdensome systems that consumers refuse to engage with is simply state censorship,” Alison Boden, executive director of Free Speech Coalition, states.
The lawyers against the act believe that the wording of the act is open-ended and too broad to be defined causing the act to be unconstitutional.
The Act states materials harmful to minors as “any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.”
There is additional concern for the protection of gaining knowledge for teenagers looking to learn about their own bodies or sexual preferences. There is belief that if the law is upheld that it would prevent the teenagers in the state from learning about their own body and accessing sex education materials. With the broad wording of the act, those who are experts and share the scientific information of the topic online could be punished.
Plaintiffs of this case plan to bring it to court in other states that have created their own versions of the act.
Other States Followed Louisiana's Act
Since 2022 when Louisiana passed their law, other states have followed with their own versions of the laws. Utah passed their own version in May of this year.
Adult film actor Cherie DeVille wrote a “Dear User” letter in support of the law in Utah. “Giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users,” DeVille stated in her letter.
Other states include Arizona, South Carolina, Mississippi, Texas, and Arkansas.
In the United States Congress
In November of this year, Senator Mike Lee from Utah introduced a bill called the “Shielding Children’s Retinas from Egregious Exposure on the Net Act’’ or the ‘‘SCREEN Act.” This would be an age verification act nationwide.
This Act would ask the Federal Communications Commission (FCC) to require that all pornography sites nationwide have age verification technology to ensure that no minors can access the site. The FCC would have the power to enforce this verification rule and require there be proper warning and opportunity to the websites that are not up to code to correct their websites before any enforcement be taken.
Child Online Protection Act
There is similarity of the act in Louisiana to the Child Online Protection Act, or COPA from 1998, signed into law by Bill Clinton.
The Child Online Protection Act intended to protect children's privacy by providing the parents with tools that control the information that their children collect online.
The Act requires the Federal Trade Commission to promote proper regulations for the websites that are directed for children that are the age of 13 and under or if they are collecting personal information from children that are 13 or under to do the following:
Notify the Parents of the information practices that they use.
Get verified parental consent for the collection, use, or disclosure of their children’s personal information.
Allow parents to prevent the future use and collection for their children’s information.
Allow parents to access their children’s personal information that the website collected.
Not require that the children on the websites provide more personal information than what is necessary in order to participate in the activity on the website.
Have reasonable procedures in place that are intended to protect the confidentiality, security, and the integrity of the personal information that they have.
The Act has a “safe harbor” provision in order to encourage the industry from the proper self-regulation. This provision allows industry groups to request the approval of the Federal Trade Commission for approval of the self-regulatory guidelines they created.
The Act was passed with the intention of protecting minors from obscene and inappropriate materials but it was found to be unconstitutional. It was found to be a violation of the First Amendment by limiting the rights of citizens to receive and send information on the internet. The language was too broad to be found as constitutional, similar language to what the Plaintiffs are saying with Louisiana's Act.
The Child Online Protection Act was found both unconstitutional and inefficient in actually protecting children from what they were meant to be protected from.
The Supreme Court has a history of allowing access of minors to their First Amendment Rights but they are more restricted than the First Amendment Rights of adults.
However, with this in mind, the First Amendment rights of adults cannot be used as a rationale for endangering children. In New York v. Ferber decided in 1982, the Supreme Court unanimously agreed that the First Amendment does not protect child pornography.
The difference between the Child Online Protection Act and New York v. Ferber is consumption versus physical danger. It is illegal to allow children to participate in child pornography and it is unconstitutional to prohibit certain internet use for minors, especially if the law has incredibly broad terminology.
Why Pornography is Considered Not Safe for Minors
There have been studies that have shown that pornography is linked to verbal and physical sexual aggression when minors have access to it. There is also a link to sexist viewpoints and gender-stereotypical sexual beliefs.
Internally children experience self image issues, increased insecurity, decreased life satisfaction, psychosomatic symptoms, depressive symptoms, suicidal ideation and suicidal attempts.
There is also an increase in unsafe sex practices and unprotected sex amongst minors when experiencing pornography from younger ages.