TheQuartering [9/20/2023]
Today let’s talk about a right we currently take for granted that may soon disappear: the ability to browse and post to most websites anonymously.
In May, Utah became the second state to enact a law requiring adult websites to verify the identities of their users. The law requires websites that host porn to use one of several methods to ensure visitors are 18 years or older, including state-issued digital IDs and third-party age verification services. Those services use a range of verification tools, including age estimation based on the user’s face and uploading a government ID.
The law originated from reasonable concerns that most websites do almost nothing to prevent minors from accessing porn online. But as written, it also discourages adults from using these sites — the stigma around watching porn means that very few people want their face or government name linked to their browsing on a site like Pornhub. (The fact that verification companies are supposed to delete user data after verification hasn’t provided much comfort, since how will anyone know if they’re following through?)
To the anti-porn Republican supermajority of the Utah legislature, this broader challenge to adult websites is undoubtedly a happy byproduct of the law. So, too, is the fact that one of the leading adult websites, Pornhub, went dark in Utah in protest of the new law.
This isn’t the first time the US government has sought to restrict access to adult content by requiring websites to verify users’ ages. In 1998, the Child Online Protection Act similarly attempted to enforce age verification schemes. But after 10 years of litigation, the Supreme Court refused to hear the government’s final appeal, leaving in place a ruling that the law was unconstitutional.
The reason is that the First Amendment prevents the government from weighing in on what kinds of content might be “harmful to minors.” In particular, courts observed that materials that might harm a young child would not harm a 17-year-old. The one-size-fits-all strategy, the court decided, chilled too much speech.
That outcome should cheer anyone who hopes that the Utah law and others like it are eventually thrown out. But this week, privacy advocates lost their first attempt in district court — and for a disturbing reason.
It turns out that Utah crafted its law using lessons from recent Republican victories in abortion cases. Instead of compelling the state to act against porn providers, Utah’s law empowers private citizens to sue them. The result is what the director of the advocacy group the Free Speech Coalition has called “an end run around the First Amendment.”
And for now, it’s working.
Here’s Sam Metz in the Associated Press:
U.S. District Court Judge Ted Stewart did not address the group’s arguments that the law unfairly discriminates against certain kinds of speech, violates the First Amendment rights of porn providers and intrudes on the privacy of individuals who want to view sexually explicit materials.
Dismissing their lawsuit on Tuesday, he instead said they couldn’t sue Utah officials because of how the law calls for age verification to be enforced. The law doesn’t direct the state to pursue or prosecute adult websites and instead gives Utah residents the power to sue them and collect damages if they don’t take precautions to verify their users’ ages.
If this strategy sounds familiar, it’s because it’s the same one Texas used in its 2021 law to prohibit abortions at around six weeks. The Supreme Court upheld that law, making it a model for state legislatures to curtail other freedoms.