Pornography, The First Amendment, And Data Privacy Walk Into A Bar

Frankfurt Kurnit Klein & Selz


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Once again, the First Amendment has come to the defense of pornography. This time, though, the battlefield has also roped in data privacy and its inherent tension with age verification requirements.
United States Privacy
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Once again, the First Amendment has come to the defense of pornography. This time, though, the battlefield has also roped in data privacy and its inherent tension with age verification requirements. On March 13, 2023, Indiana signed into law Senate Bill 17 (the "Act"), which provides, in part:

Chapter 23. Age Verification for Adult Oriented Websites

Sec. 1. "Adult oriented website" means a publicly accessible website that publishes material harmful to minors, if at least one-third (1/3) of the images and videos published on the website depict material harmful to minors.

Sec. 7. "Reasonable age verification method" means a method of determining that an individual seeking to access a website containing material harmful to minors is not a minor by using one (1) or more of the following methods:

(1) A mobile credential.

(2) An independent third party age verification service that compares the identifying information entered by the individual who is seeking access with material that is available from a commercially available data base, or an aggregate of data bases, that is regularly used by government agencies and businesses for the purpose of age and identity verification.

(3) Any commercially reasonable method that relies on public or private transactional data to verify the age of the individual attempting to access the material.

On June 10, 2024, the Free Speech Coalition, Inc. (the "FSC"), representing a number of adult entertainment platforms, sued Todd Rokita, as the Attorney General of Indiana, alleging that the Act violates the First Amendment, Eight Amendment, and Fourteenth Amendment and conflicts with Section 230 of the Communications Decency Act.

First, the Act allegedly violates the First Amendment because the age verification requirement is a content- and speaker-based restriction which fails strict scrutiny. The FSC argues that the Act is a content-based restriction because it only applies to certain types of speech, and it argues that the Act is a speaker-based restriction because it does not apply to search engines or large social media websites (because the "more than 1/3 rule" likely does not apply to them). If the FSC is correct, then the Act would be subject to strict scrutiny. Under strict scrutiny, a law is only constitutional if it is narrowly tailored, or is the least speech restrictive means available, to meet a compelling government interest. Protecting minors from harmful conduct is likely a compelling government interest, so the issue under strict scrutiny is whether the Act is narrowly tailored or is the least speech restrictive means available. The FSC argues that it is not.

The FSC claims that the Act is the leasteffective and mostrestrictive means of accomplishing Indiana's stated objective of protecting minors, since minors can easily circumvent the Act by using VPNs, remote desktops, or other similar tools. It also argues that the means—age verification—is overly burdensome, chills speech, and amplifies data privacy risks to Americans. Age verification either requires adults to share large amounts of personal information with online databases or requires the platform to pay commercial age verification services which are, according to FSC, unduly expensive (citing Trustmatic's rates, which charges $40,000 per 100,000 verifications, and is allegedly one of the cheapest options available). The latter option—paying a commercial vendor—also does not alleviate the inherent risk of the mere existence of large online databases of personal information. The FSC states that requiring databases for age verification purposes pose inherent data privacy risks that, in addition to chilling speech, are themselves harmful to consumers.

The FSC brings a host of other arguments against the validity of the Act, including the allegedly unconstitutional vagueness of the age verification requirements. Age verification is not a unique concept to Indiana. Many governments, both domestic and abroad, are exploring age verification requirements not only for adult entertainment websites but for video games or other entertainment media that, while not pornography, are still rated for mature audiences. All of the foregoing have historically been treated as protected speech, and therefore, this case—and other cases like it—may have significant impact on the future of age verification laws in the United States.

The complaint can be found at: Free Speech Coalition, Inc. v. Rokita, 2024 WL 2924770 (S.D. Ind. June 10, 2024)

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