Last week, U.S. District Court Judge Richard Young temporarily blocked enforcement of a new Indiana law requiring porn sites to implement age verification services.
Young, who has a history of activism from the bench, ruled that the law was “likely unconstitutional” after a lawsuit was brought against the Indiana attorney general by the Free Speech Coalition and several pornography lobbyists. Though several courts have already given the green light to similar regulations — and the Supreme Court has declined to block them — Indiana must now wait for a full review of Senate Enrolled Act 17 by a higher court.
If an adult website consists of more than one-third “material harmful to minors,” or pornography, the bill requires them to institute an age verification method such as 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.
In his order granting the preliminary injunction, Young parrots the argument of the Free Speech Coalition, that pornography access is a fundamental right protected by the First Amendment. As a result, he says, laws regulating its distribution must pass “strict scrutiny” or be the “least restrictive means” of accomplishing a compelling government interest.
However, the 5th 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 agreed to hear an appeal of this decision but declined to block enforcement of the Texas law in the interim.
Young, for his part, brings up Reno v. ACLU (1997) to defend against the application of Ginsberg v. New York. This case struck down most of the Communications Decency Act for being “unconstitutionally vague,” particularly in its definition of indecency. However, the decision left open enforcement of the law against obscenity.
Indiana law has a clear definition of “material harmful to minors” (used in Senate Enrolled Act 17), that is based on the Supreme Court’s definition of obscenity in the Miller Test.
[If it] (1) describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse; (2) considered as a whole, it appeals to the prurient interest in sex of minors; (3) 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 (4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.
Adults are still able to access the material, but access would be subject to the time, place, and manner restriction of submitting to age verification.
Young also argues that the law is “ineffective,” again parroting the claims of the Free Speech Coalition, without providing any evidence other than potential workarounds of the law, and proposes filtering and blocking technology as an alternative.
He notes that “filtering software is not widely used,” but blames this on Indiana law and does not acknowledge that depending on the use of such software presupposes that parents are actively involved in their children’s lives and care about protecting them from unhealthy content online, or even know how to.
He also points out that social media sites like Reddit are likely excluded from the law, despite the significant amount of pornographic content available on them. Several sites with a significant portion of use dedicated to the distribution of pornography, such as Fetlife, also claim to function as social media, so it is unclear where a line would be drawn for those that may consist of more than one-third pornography.
In his order, he also claims as a defense that Pornhub has a “blog advocating for legislative change” on their site in addition to other non-pornographic materials. “Were a private building that ordinarily functions as a strip club acting as the site of a political rally for a night, the court doubts the State could require adults to provide identification to enter,” he said.
However, pornography is still accessible on the site to anyone who accesses the non-pornographic material, so the connection to the case at hand is unclear.
Young, nominated by Bill Clinton in 1998, has a history of other activist decisions.
Young ruled that a law requiring voters to go to a county election board rather than directly to the courts to petition to keep polling places open for longer was unconstitutional. This decision was later stayed. In Bowling v. Pence (2014), he ruled that Indiana had to recognize same-sex marriages from other states, and in Baskin v. Bogan (2014) he ruled that Indiana had to perform same-sex marriages, before even Obergefell v. Hodges.
He also struck down a law requiring doctors to report abortion complications, claiming that it violated Planned Parenthood’s rights.
Abe Stahl is a graduate student studying policy analysis at Indiana University. He also writes for The Indiana Commons.
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