'Backdoor censorship': Could age verification on adult sites violate the First Amendment?

Tennessee lawmakers are considering pushing for age verification requirements to view adult content online — a move that is raising questions regarding what mature content, and the right to access it, the First Amendment protects.

Republican lawmakers for their next regular session in January have indicated they may consider legislation that would require age verification — likely in the form of a state ID card — for adult websites in an effort to shield children from online sexual content.

The bill follows behind several states that have recently enacted similar measures, including Arkansas, Mississippi, Texas, Utah and Louisiana.

Tennessee House Republican Caucus spokesperson Jennifer Easton in an email this month said the plan is one of “several ideas in ongoing discussions by House Republicans about what can be done legislatively to protect the innocence and safety of children.”

“Our members remain vigilant and will continue to bring good ideas forward in this effort,” she said.

But talk of the proposal comes after a string of recent bills spearheaded by the General Assembly aimed at protecting children have faced pushback on First Amendment grounds.

Do you have a First Amendment right to access pornography? Sometimes, says expert

The states that have passed similar age verification laws have sparked heated debates over free speech and digital privacy.

The debates center around a topic that has confounded American courts for decades: where to definitively draw the line between constitutionally protected content like pornography, and non-protected content deemed obscene or harmful to minors.

While details of the Tennessee bill are yet to come, David Hudson, a professor at Belmont University’s College of Law and a First Amendment expert, said the First Amendment legality of this potential bill will rest in where it draws its reasoning.

“If we take the category of pornography — which is not a legal term, by the way — the vast majority of pornography is protected speech for adults anyway,” he said. “There are only two unprotected categories: obscenity and child pornography. And those are both very narrow.”

While child pornography hardly needs explaining, obscenity, Hudson said, refers to a very narrow slice of “hardcore sexual content” that usually involves violence or content that can commonly be considered “really just beyond the pale,” Hudson said.

Within these categories lie a few distinctions: content can be deemed “harmful to minors,” which refers to content protected for adults but not for minors, and “indecency,” which acknowledges that there is content acceptable for older minors but not younger minors.

These distinctions, Hudson said, is where lawmakers might stake their claim for the First Amendment legality of the legislation. Limiting content via age verification simply because legislators take moral issue with the content would be an obvious First Amendment violation, but by naming adult content “harmful to minors,” legislators might have an argument.

“It's theoretically possible to argue for an age verification system if the material truly is harmful to minors,” he said. “However, the concept of obscenity is very controversial. Because what I think might be beyond the pale may be different than what you think is beyond the pale. There is such a narrow range of material that's not protected by the First Amendment—that's only sexually explicit content that has no serious literary, artistic, political or scientific value—and again, that’s the ‘eye of the beholder’ situation.”

Harmful-to-minors laws have rarely fared well in the courts when regulating online content: many courts nationwide have struck down a number of internet harmful-to-minors laws since the early ages of the internet by finding that the state’s interest in protecting minors cannot inhibit the free speech rights of adults or older minors, or the free speech rights of website owners to present adult content.

Should Tennessee lawmakers lean toward labeling adult content “harmful to minors,” it would not be the first time they used that justification to pass a law.

The Adult Entertainment Act, which was passed in March and attempted to restrict drag performances in public places or where minors could view them, was promoted by legislators who cited the “harmful to minor” clause extensively. The law was struck down by a federal judge in June, who ruled it unconstitutional and a violation of the First Amendment.

The key to passing an age verification requirement without overly burdening adults who have a First Amendment right to access or create such content, Hudson said, is to narrowly craft the law — or simply find a less restrictive method.

“I could see how the age verification could have a chilling effect (on the free speech rights of adults),” he said. “The question becomes whether there's a less speech-restrictive alternative to it. Like a filtering or blocking software or something. The Tennessee legislature needs to craft narrow and appropriate legislation for this to not become a First Amendment issue.”

“I think you'd have to carefully define what type of material is subject to an age verification: it would need to only be on websites that offer material that meets the standard of being harmful to minors. If it's applied more broadly, then it's going to lead to a pretty significant suppression of free speech rights.”

Law would essentially be 'backdoor censorship,' says free speech advocate for adult content

The first of the age verification laws was passed in Louisiana, and it is facing a legal challenge by the Free Speech Coalition, an advocacy organization for the adult entertainment industry.

The group claims the measure chills free speech, is written too vaguely for companies to follow and even increases the possibility of abuse.

And what many supporters of the current age verification bill have wrong, said Mike Stabile, director of public affairs for the Free Speech Coalition, is that adult content distributors like porn websites don’t want kids on their site, either.

“Within the industry, there has long been a push to figure out if there is a better way to keep minors off of adult sites,” he said. “Aside from the many moral and ethical issues, it's also a financial burden. There's no incentive to have kids on those sites — they are not customers. There's no benefit for that.”

While there is no benefit for minors to be on the site, Stabile said the industry sees downsides to requiring age verification for adult users, ranging from privacy concerns to inadvertent, increased abuse — something Stabile called “backdoor censorship.”

“The vast majority of consumers are not comfortable having their government ID associated with an adult site,” he said. “They are worried about surveillance, and they're worried about hacking. And so consumers just say, ‘Well, I'm going go elsewhere. I'm going to go to a pirate site, or social media, or I’m going to go to a competitor.’”

A sticking point of these laws, Stabile said, is that the law only applies to US-based content — on an internet that spans the world.

Stabile acknowledges that for many readers, the business affairs of an adult content company aren’t a foremost personal concern — especially for those morally against adult content. The question he often gets is "‘"Why should I care?"

His answer: safety.

“There are a lot of people who have a moral opposition to adult content,” he said. “I want to respect that, but at the same time, this is not a feasible system. What you're going to do is punish compliant, ethical sites with a First Amendment right to exist — and people who are taking down illegal, abusive content — and you're going to fuel the growth of and push traffic toward illegal and unethical sites, largely ones that are overseas. Then you're going to see an explosion of adult content on all social media.”

Essentially, the limiting of ethical adult content, according to Stabile, will have entirely the opposite affect the bill is intending, by putting more adult content in less-regulated places.

“It’s backdoor censorship," he said. "If you limit the free speech of adult content where it already is, it’s going to start migrating unchecked onto platforms like Twitter, Reddit, or Snapchat — where kids actually are.

“This is the crux of the First Amendment: it protects the speech that we don't like, as well as the speech we do like,” he said. “Because speech that you like doesn't need protection. If you let the government start limiting some content because they don’t morally agree with it, that is a very, very slippery slope.”

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham

This article originally appeared on Nashville Tennessean: TN age verification: Could new proposals violate the First Amendment?