What The New Scotus Ruling Means For Av Laws And Free Speech

The Free Speech Coalition, and other petitioners, argued that the law failed to meet the standard of “strict scrutiny” review, which has historically been applied by the courts in online age verification cases. Laws subjected to strict scrutiny are almost always struck down.

Time will tell whether the courts will impose reasonable limits on states’ efforts to restrict access to adult content. The Paxton ruling may incentivize some states to impose even more extreme restrictions.

Texas, on the other hand, claimed that the law merely needed to pass the more lenient “rational basis” test, previously used to evaluate laws barring minors from brick-and-mortar adult bookstores. Laws evaluated under the rational basis test are usually upheld.

Oral arguments in the case spanned some two hours and largely focused on which of these competing tests should be used to evaluate the law’s constitutionality.

As it turned out, the six conservative SCOTUS justices had other plans for the outcome of this case. Justice Thomas, writing for the court, announced that the law would instead be subject to “intermediate scrutiny,” under which laws need only serve “an important governmental interest” and be substantially related to achieving that interest.

According to the majority, the law easily passed this test.

To justify this result, the court concluded that the Texas law only incidentally burdens the rights of adults to access sexually explicit content online, and that adults have no First Amendment right to access such content without age verification. In an act of judicial wizardry, the decision parsed out the act of accessing adult content without age verification, which it deemed unprotected, from the act of viewing adult content, to which adults do have a First Amendment right.

The petitioners, along with other supporting groups, attempted to educate the court in the briefing regarding the significant burden imposed on adults by the Texas law, given the risks of data breach associated with online age verification, the significant percentage of adults that do not have identification documents, the threat to individual privacy rights and the chilling effect of the law in stopping adults from viewing age-verified content. Even a large online child protection organization, ICMEC, submitted a brief opposing age verification due to the resulting harm to minors who will avoid regulated adult sites and be driven to the dark corners of the internet where they risk exploitation or worse.

The court essentially ignored these arguments, and focused instead on the ready availability of explicit content online and the vast use of mobile devices by minors as reasons to uphold the law.

Adult industry stakeholders and free speech advocates far beyond the industry were disheartened by the decision, which clears the way for other U.S. states to enforce existing online age verification laws, and impose new ones.

Most of the pending legal challenges to other existing AV laws are likely to be dropped, though some states’ statutes may go too far to survive constitutional muster under the intermediate scrutiny standard. For example, Tennessee imposes felony penalties for violations and requires re-verification every 60 minutes. Alabama’s AV law requires that platform operators obtain signed, notarized consent forms from all persons depicted in pornographic content.

Time will tell whether the courts willimpose reasonable limits on states’ efforts to restrict access to adult content. The Paxton ruling may incentivize some states to impose even more extreme restrictions. We can be hopeful that the First Amendment still has some meaning when it comes to the imposition of burdens on adults accessing constitutionally protected speech.

From a practical standpoint, the ruling means that adult websites that meet the applicable criteria for being subject to AV laws — i.e., sites hosting more than a designated percentage of content meeting a state’s definition of “harmful to minors” — should immediately implement the required age verification methods or risk civil claims, administrative penalties or even criminal prosecution.

While geoblocking residents in a restricted state may be an option, geoblocking also produces many false negatives and false positives. Ultimately, the burden will be on the operator to ensure that it has prevented minors from accessing adult content, whether through blocking or age verification. Operators should also seek legal advice on any recommended changes to their privacy policies or user agreements, in light of these state AV laws.

In that regard, operators should be aware of any new AV data that they will be collecting from users pursuant to their privacy policies, and consider whether to change any dispute resolution terms in their user agreements.

Some operators located outside the United States may assume that their offshore location will protect them from enforcement of U.S. laws. This is likely a dangerous assumption. If an operator regularly engages in commercial transactions with numerous users or service providers in a restricted state, a strong argument exists for a court having sufficient jurisdiction over the company to force it to defend a lawsuit in the state. However, some foreign operators, such as content aggregators or affiliates that merely drive traffic to third-party websites, may be in a different legal position.

Adult companies should also be aware of the burgeoning plaintiffs’ law practice area that has been created by AV laws that allow enforcement through private lawsuits. We expect to see a number of these claims filed against noncompliant operators in the near future, particularly given the ability to recover attorneys fees against unsuccessful defendants. Many potential litigants were likely awaiting the SCOTUS ruling before filing these claims.

We can also expect a new wave of adult content moderation by some online platforms as they grapple with the need to keep the percentage of adult content below the applicable threshold. It is likely that such platforms will over-censor adult content in any close cases, to avoid having that content count in the total calculation.

Many adult performers are asking whether these laws apply to them. The simple answer is yes, some state AV laws are clearly broad enough to cover performers who offer adult content on their own landing page, or on third-party websites. However, we are unaware of any current efforts to enforce the laws in such circumstances. That said, performers have an incentive to ensure that in states with AV laws, their content is offered on age-verified sites, as a risk mitigation effort.

While the Paxton decision was a gut punch, the adult industry has overcome many headwinds in the past. Consider the wave of obscenity prosecutions that were directed first against adult bookstores and later against adult website operators, at the state and federal levels. The industry also had to adapt to the passage of Section 2257 and FOSTA/SESTA.

The adult industry is strong and innovative. Technology like blockchain tokens and AI will likely drive developments in AV tools that will make the process less costly and more streamlined. As the Supreme Court noted over 60 years ago, “Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” The interest in human sexuality shows no signs of slowing, despite governmental efforts to limit access to sexual expression online.

Lawrence Walters is the operator of Walters Law Group, which represents adult industry clients worldwide. Nothing in this article is intended as legal advice. You can contact Mr. Walters through the firm’s website, www.firstamendment.com, or on social media @walterslawgroup.