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Jan. 22, 2024 |  By: Michael McGrady Jr. - Missouri Independent

Missouri legislature weighs age-verification mandates for adult websites

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By Michael McGrady Jr. - Missouri Independent

Missouri lawmakers are pushing legislation this year requiring pornographic websites and online dating services to verify the ages of all users. Proponents say the goal is to prevent children from accessing inappropriate content online. 

However, civil liberties advocates are raising red flags, arguing that the purveyors of adult entertainment content want to prevent minors from viewing age-restricted content while still respecting the rights and privacy of adult consumers who wish to view such types of materials. 

A trio of nearly-identical bills have been proposed by Republican state Reps. Brad Banderman of St. Clair, Sherri Gallick of Belton and Mike McGirl of Petosi targeting adult websites like Pornhub, YouPorn, xHamster, XVideos and others.

Meanwhile, Democratic state Sen. Doug Beck of Affton introduced age verification legislation specifically dealing with online adult dating platforms. Originally, Beck filed an age verification bill targeting pornographic material, similar to the House proposals, but withdrew it, citing errors in the drafting process, according to a spokesperson for the Missouri Senate Democratic Caucus.

A similar bill was proposed during the 2023 legislative session by Republican Sen. Rick Brattin of Harrisonville. He introduced the same bill again this year, targeting age verification through a different measure: regulating internet service providers.

Brattin’s approach to restricting underage access would require an opt-in or opt-out for internet subscribers to enable top-level filters of sites that are viewed as “obscene.” 

“Whether material is legally ‘obscene’ or not is a determination for a jury that has considered evidence, not a machine applying blunt detection systems and making its own value judgments,” said David Greene, senior staff attorney and civil liberties director for the Electronic Frontier Foundation. “No tool exists that makes the legal determination the bill requires. Rather, the tools and the law would target a wide range of materials, often, but not exclusively, dealing with sexual content. Many of the results would be nonsensical filtering decisions.” 

The House age verification bills are also concerning to critics.

“This is a child protection bill,” Gallick said. “I care deeply about children, and raising a child should be the single most important thing that anyone does.”

“I was asked to consider legislation to protect children from pornography,” adds Gallick 

Corey Silverstein, a criminal defense and First Amendment attorney from Michigan, said Missouri’s age verification bills could be damaging to civil liberties.

“Protecting children from viewing certain types of material is certainly an important issue that deserves more dialogue, debate and potential legal solutions,” Silverstein said. “However, ignoring [all] established case law and the First Amendment is not the way to do it.”

Silverstein specifically pointed to Gallick’s bill, which would establish a private right to action against adult entertainment websites that do not comply with age verification.

Gallick’s bill “continues the dangerous trend started by the state of Louisiana, where people’s privacy and free speech are being completely ignored,” said Silverstein, who is also a member of the First Amendment Lawyers Association and specializes in representing adult industry clients.

Louisiana adopted laws requiring government identification or some sort of age verification to access adult content online, and this past year, implemented a private right to action for anyone in the state to sue platforms that don’t adopt an age-check solution provided by the state government or a private vendor, like Yoti and Incode.

Utah, Arkansas, Virginia, Montana, Texas, Mississippi and North Carolina also implemented similar laws in 2023. 

Legally produced and consensual pornographic content produced for U.S. consumers is granted protection under the First Amendment. The U.S. Supreme Court affirmed this in the landmark  ruling in Ashcroft v. American Civil Liberties Union in 2004. The case involved the Child Online Protection Act, passed in 1998 by Congress and signed by then-President Bill Clinton, which sought to restrict access by minors to any material on the internet defined as harmful.

The court found restrictions on material that was ostensibly “harmful to minors” are an unconstitutional violation of the First Amendment’s guarantee of freedom of speech. 

In 1996, the high court found age segregation on the internet to be unconstitutional in another landmark ruling in Reno v. American Civil Liberties Union. 

“The fact is that the U.S. Supreme Court found that these types of laws were too restrictive in (their) attempts to regulate harmful material on the internet and violated the First Amendment,” Silverstein said, “and now these individual states are trying to do the same thing.” 

Gallick expressed no concern about criticism that her legislation posed a threat to civil liberties, saying that “protecting children is what is important to me.”

The Free Speech Coalition, a national trade organization that represents the adult entertainment industry, said many proponents of age verification laws dismiss the input of the industry. Alison Boden, the executive director of the coalition, said the Missouri bills “will do very little to keep minors from accessing adult content.”

“By targeting adult sites specifically,” she said, “they paradoxically encourage the growth of adult content on social media, making it more likely that kids are going to stumble upon it unintentionally.”

Boden added: “We would love to speak to legislators in Missouri…about approaches that would be effective at keeping children from seeing inappropriate content while respecting the privacy and safety of consumers.”

Gallick said she is “always willing to listen to anyone, but the internet is everywhere. We need an age-based verification system to protect our youth….We are shaping their behaviors, their lifestyles and their realities by what they see on the internet.”

Age verification approaches promoted by the adult entertainment industry include device-based verification. In a blog post published by Pornhub in the summer of 2023, the adult site said relying on IP addresses and unique hash data, sans a government identification or image, is a much more secure approach. 

“This dramatically reduces privacy risks and creates a very simple process for regulators to enforce,” Pornhub said.

In Texas, an age verification law was passed in 2023 that required adult websites to publish claims of porn addiction in addition to verifying the age of each user who visits a porn website from a local IP address.

The Free Speech Coalition and the parent companies of the largest adult platforms in the world, including Pornhub, which is now owned by the Canadian private equity firm Ethical Capital Partners through their Aylo Holdings property, filed a federal lawsuit.

U.S. District Judge David Alan Ezra of the Western District of Texas in August. deemed the law unconstitutional. His ruling has been appealed.

In Virginia, an age-verification law has largely fallen flat. Pornhub opted to block users from accessing their platforms altogether in Virginia in protest of the new law, and residents can still easily access adult content through a plethora of unrestricted, lesser-known websites.