Free Speech Coalition, Inc. and several pornography website operators filed a lawsuit against Todd Rokita, the Indiana attorney general on Monday. The group seeks to block a recent law that prevents minors from accessing pornography websites from going into effect. The lawsuit comes after a series of unsuccessful legal challenges in seven other states, where the pornography lobbyists claimed similar regulations violated constitutional rights and federal law.
Central to the plaintiffs’ argument is that pornography is a fundamental right protected by the First Amendment. Therefore, any law regulating its distribution must pass strict scrutiny or be the least restrictive means of accomplishing a compelling government interest.
However, the Fifth U.S. Circuit Court has already ruled on an equivalent Texas law that, based on the precedent set in Ginsberg v. New York (1968), the distribution of obscene or sexually explicit materials to minors is subject to the much lower standard of rational-basis review. The Supreme Court declined to hear an appeal on this decision.
Ginsberg v. New York involved an individual who sold obscene magazines to a minor in violation of New York state law. The same distributor was allowed, by law, to sell the magazines to adults and did so. The situation with the pornography website operators is similar, in that the prescribed remedy of age verification is permitted to apply to all customers. Age verification would rationally fulfill the compelling government interest in preventing minors from accessing obscene materials.
The lawsuit claims the restriction provides “neither a coherent standard for assessing to which websites it applies, nor adequate guidance on what ‘age verification’ entails.”
The law, however, states that the requirement applies to websites “if at least one-third (1/3) of the images and videos published on the website depict material harmful to minors.” It is defined in the code with similar language to the Miller Test, which was established by the Supreme Court to determine what constitutes obscenity (which is not protected by the First Amendment). The language in the code says:
[If it] describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sadomasochistic abuse; considered as a whole, it appeals to the prurient interest in sex of minors; it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and considered as a whole, [and] it lacks serious literary, artistic, political, or scientific value for minors.
The three listed age verification method categories acceptable under the law are a “mobile credential,” or scan of a driver’s license or other form of ID; an “independent third party age verification service” that compares identifying information entered by the individual with a commercial database; or any other commercially reasonable method that “relies on public or private transactional data,” such as what can be provided by a credit card.
There are already several companies that specialize in one or more of the previous verification methods, such as Yoti.
The lawsuit also claims the regulation violates Section 230 of the Communications Decency Act. However, the Fifth Circuit Court already ruled that the Texas state law is not preempted by federal law. Even if that were not the case, it is unclear what part of the law would be violated.
The Federal Speech Coalition lawsuit claims the federal law “prohibits treating website operators as if they were responsible for alleged harm caused by content created and uploaded by third parties.” However, the federal law itself doesn’t mention exemption from harm. Rather, it gives interactive computer services an exemption to moderate their content.
Even if that were not the case, several of the plaintiffs, including Aylo (owners of Pornhub) and WGCZ Holding (owners of XVideos and Bang Bros studio), also participate in content creation and moderation. Aylo (formerly Mindgeek) has even been the subject of several lawsuits for its connection to sex trafficking.
The lawsuit later contradicts itself, admitting that only a rational basis is needed for supposed violations of the 14th Amendment in the law. It makes various claims about property rights, suggests it violates equal protection by exempting most social media sites and search engines, and asserts that it violates the Fifth Amendment, which deals with taking private property for public use without compensation because it forces “platforms to adopt age verification protocols they cannot afford and will cause a mass exodus of customers.”
For context, Aylo has long been accused of operating a virtual monopoly over the pornography business making about $340.7 million per year.
As far as the exemptions for search engines go, it would be difficult to prove that over one-third of their content is material harmful to minors. It is estimated that only 4 percent of websites are pornography. Not to mention, websites aren’t manually “entered” into a search engine; rather, the search engine is viewed as more of a tool to find whatever is held on the internet itself that hasn’t opted out of indexing or been moderated by the search engine provider.
Some social media sites do, however, toe the line on the one-third limit. For example, X, formerly known as Twitter, is projected to be around 13 percent porn, and that will likely increase in the future as Elon Musk recently changed X’s policy around explicit content. Some pornography sites also try to market themselves as social media.
The lawsuit also claims the harms associated with exposing minors to pornography are “fabricated,” and that the fines proposed by the law are excessive.
However, there has been a long and well-established link between early exposure to pornography and depression, self-esteem issues, risky sexual behavior, and distorted expectations around sex.
Abe Stahl is a journalist and graduate student studying policy analysis at Indiana University-Indianapolis. He also writes for The American Commons.
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