Kids should not access pornography. The porn industry’s trade association, Free Speech Coalition, and Pornhub (Pornhub) agree on this point. So why have seemingly innocuous state age verification laws become so controversial? What is at the heart of this debate?
The Unusual Status Quo
If children can tap their way onto the internet, they can access the global archive of explicit material, including hardcore, violent, and possibly coerced pornography. This status quo breaks from the historic pattern. Before the internet, stores segregated “adult magazines” on the top shelf with obscured covers. Regulations barred children from adult bookstores, gentlemen’s clubs, and XXX movies. Never before has society removed all barriers for children to pornography. It is upon this permissive landscape policymakers consider age verification laws.
What is in the Age Verification laws?
Sixteen states — Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Carolina, Oklahoma, Texas, Utah, and Virginia — have adopted age verification laws. While each state’s law differs, the typical legal provisions in the states from which Pornhub is exiting include:
Age Verification in Other Contexts
Vendors card adults for all sorts of activities, in-person and online. Some existing age verification requirements apply to purchasing alcohol, tobacco, firearms, and lottery tickets. Age limitations also apply to gambling, viewing R-rated movies, adopting a pet, renting a car, seeking medical care, air travel, and voting. Critics do not find age verification requirements controversial in these other contexts.
Arguments Against Age Verification
Privacy Concerns:
How will erotic websites manage the personally identifiable information needed to verify age? Unsavory actors could misuse or steal the data. Information about web searches and content preferences in the wrong hands could be problematic.
The state age verification laws are agnostic regarding the verification method. They allow commercially reasonable methods and bar sites from retaining or saving the verification information. Financial platforms, gambling sites, medical services, and online shopping provide models that could inform and safeguard sensitive information. Intelligent leaders can solve this privacy puzzle.
Encourage Bad Actors:
Pornhub also argues that age verification laws give market share to pirate sites that fail to monitor content. Essentially, Pornhub argues children should have access to its pornography, or they will end up accessing pornography from “bad actors.” Pornhub’s problem is that it already confessed to being the “bad guy.” In 2023, it admitted in a criminal deferred prosecution agreement that Pornhub benefited financially from sex trafficking. It strains belief that Pornhub opposes age verification laws to keep the public safe from pirate sites, identity thieves, and extortionists, while Pornhub currently defends itself from sex trafficking in federal courts across this land.
Unconstitutional:
Are age verification laws unconstitutional? Advocates suggest these laws have a chilling effect on adults’ First Amendment rights to consume the free speech content pornographers create. The debate headed to the Supreme Court over Texas’ law will focus on whether a trial court should use the low “rational basis” standard or the higher “strict scrutiny” standard when evaluating the constitutional implications of verifying age.
The pre-internet analog is informative. When magazines and VHS tapes were porn’s primary distribution method, adult consumers appeared in public, approached a clerk, and verified their age to make a purchase. One could argue that virtually verifying age is less chilling. It is also possible that some age verification laws can withstand strict scrutiny, as wise leaders deal with the friction between a pornographer’s free speech rights to distribute explicit content and communities’ rights to protect children from accessing harmful content. On their face, the age verification laws do not prevent adults from consuming any explicit content after age verification.
Age Verification is Ineffective:
Pornhub highlights that Virtual Private Networks (VPN) can circumvent age verification laws by cloaking a user’s geolocation. Similarly, it is unlikely that these laws can effectively regulate foreign websites. While true, society does not determine a law’s worthiness by its ability to be completely effective. Speed limits do not stop all fast drivers, and carding individuals does not prevent children with fake IDs from buying booze. While not completely effective, these measures can deter prohibited conduct.
Democracy's Hope
Over 30 pieces of age verification legislation are moving through state legislatures, while Pornhub’s legal challenges work through the courts. The current age verification debate is a unique canvas for citizens to manage multiple priorities: Protecting children, free speech, privacy, and effectiveness. Throughout this process, people should raise their voices, advance their arguments, and celebrate how democracy is the best system to manage tangled, noble priorities while protecting the most vulnerable.
By John Richmond
Chief Impact Officer of Atlas Free, Former US Ambassador-at-Large to Monitor and Combat Trafficking in Persons
