I’m sure you’ve already noticed, but just in case…
One of the most-visited pornography websites, Pornhub, disabled its site in Texas on Thursday over objections to a state law that requires age verification to prevent access to minors.
People who go to the site are now greeted with a long message from the company railing against the legal change as “ineffective, haphazard, and dangerous.” The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.
“Until the real solution is offered, we have made the difficult decision to completely disable access to our website in Texas,” the message read.
The Republican-majority state Legislature passed the age verification law, HB 1181, last year. It requires companies that distribute “sexual material harmful to minors” to confirm visitors are over 18 with an online system that verifies users’ government-issued identification or another commercially available system that uses public or private data. The sites are not permitted to retain identifying information.
Last month, Texas Attorney General Ken Paxton sued the company that owns Pornhub to force compliance with the state’s age verification law and threatened millions of dollars in civil penalties.
[…]
A representative of Pornhub confirmed the website was down, but did not elaborate on whether the takedown is permanent or temporary.
The company in its note raised concerns that the law was passed “without any means to enforce at scale” and would drive users to websites “with far fewer safety measures in place, which do not comply” with the law.
The “only effective solution,” the company writes, would be putting the age-verification onus on the manufacturers and operating-system providers of devices that have internet access, such as computer, tablet and cell phone makers.
That might look like a retailer verifying a person’s age at the point of sale and installing content-blocking software if they are underage, the note says. The data would be “stored on a network controlled by the device manufacturer or the supplier of the device’s operating system.”
The Pornhub representative referred Hearst to a fact sheet laying out the company’s concern that jurisdictions with site-level age verification are creating a “high risk of data theft and privacy violation” for people who will repeatedly have to input personally identifiable information.
“We call on all adult sites to comply with the law,” the note reads. By disabling the site, the company said: “We are complying with the law, as we always do, but hope that governments around the world will implement laws that actually protect the safety and security of users.”
See here and here for some background. Not sure that Pornhub’s call for solidarity from its peers will get the result it desires, but we’ll see.
The Trib adds some useful context.
The appeals court previously reversed an injunction of a U.S. District Court judge, which had blocked the law from going into effect in August. The 5th Circuit’s temporary stay required pornography websites to impose age-verification measures and display health warnings that said pornography is proven to harm brain development.
In the most recent decision on March 7, the 5th Circuit decided the age-verification component of the law could stand, but ruled that the law’s required health warnings unconstitutionally compelled speech.
[…]
The 5th Circuit’s decision on Pornhub’s lawsuit, concerning online content, cited a 1968 ruling from the Supreme Court, which upheld a New York statute that prohibited the sale of obscene magazines to minors. In Ginsberg v. New York, the nation’s highest court decided that children could be constitutionally denied access to material that was “harmful to minors.”
The Texas Tribune thanks its sponsors. Become one.
Decades later, with the internet widely available to the public as a platform to distribute material — obscene and not — similar questions about minors’ access to “harmful material” came before the Supreme Court.
In two separate cases stemming from congressional legislation aiming to prevent the distribution of obscene material to minors, the Supreme Court ruled that the 1996 Communications Decency Act and the 1998 Child Online Protection Act were unconstitutional restrictions of free speech.
The court argued that efforts to prevent minors from accessing obscene materials, such as age verification, could impede communication between adults.
“As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it,” Justice John Paul Stevens wrote in the majority opinion of Reno v. American Civil Liberties Union that found the anti-indecency provisions of the Communications Decency Act violated the First Amendment.
Nearly three decades after Stevens’ opinion, Texas lawmakers tried to impose age-verification measures online.
“We did all this. Everything that’s been discussed here has already been discussed and resolved,” Eric Goldman, a professor at the Santa Clara University School of Law who specializes in internet law, told The Texas Tribune.
Goldman said the Supreme Court has already ruled on the regulation of online obscene materials in light of the Ginsberg case. He said the nation’s highest court determined that the internet is different from the offline world, and the two cannot be treated the same way.
He maintained Texas’ age-verification requirement is categorically unconstitutional because it forces all users to complete a mechanical process before accessing protected material, which can slow people down and act as a barrier to content. Goldman added it drags down the earning potential of publishers and adds costs to users who create content.
In drafting House Bill 1181, Goldman said, Texas legislators weren’t creative or careful to present new legal questions to longstanding concerns.
“The law hasn’t changed in between the last round of battles and today,” Goldman said. “So they’re gambling on the hope that a court might change. And to me, that’s a very dicey way of making legislation because they’re basically saying, ‘We know it was [unconstitutional], we just don’t care.’”
Using the 2023 law, Goldman said, Texas legislators are tempting the Supreme Court to “overturn its own precedent, which it has a recent history of doing.”
Thomas Leatherbury, director of the First Amendment Clinic at SMU Dedman School of Law, said he’s concerned about the trend in the courts regarding First Amendment cases. But threats to free speech have also been originating on the opposite side of the legal process, he said.
“There’s a troubling trend in the Legislature … where, despite all the lawyers that are in the Legislature, they don’t seem to care about constitutional issues as long as it’s popular with their voters,” Leatherbury said.
As an example of compelled speech that Leatherbury said violates the First Amendment is the Star Spangled Banner Protection Act. The 2021 Texas law requires professional sports teams to play the national anthem before games if they have contracts with the state government. No one has successfully sued to overturn it.
I appreciate the update on what the Fifth Circuit has actually done. I thought we were still waiting for their final ruling. Aylo, the company that owns Pornhhub, says they plan to appeal. You’d think, based on the existing precedent as described here, it would be a clear reversal by SCOTUS. I don’t have any confidence in that, but I don’t know that there’s any choice but to go forth and hope. The one prediction I will make is that at some point someone will report that the use of VPNs has greatly increased in our state. It’s wild out there, y’all.
UPDATE: Ha ha ha ha ha ha ha!
Google searches for VPNs, or virtual private networks, surged Thursday in Texas after adult-entertainment site Pornhub — one of the world’s most-visited sites — cut off access to Lone Star State web surfers.
Death, taxes, and people finding a way to get their porn. God bless America.
So much for “Land of the Free”.
Our new Christian theocratic government in Texas is just getting started on deciding what is best for you, according to their interpretation of the Bible. Prepare to be smitten, Old Testament style.
J, you spelled Fascist wrong.
Pingback: Sure, Pornhub could verify identities and ages if they wanted to | Off the Kuff
Pingback: Paxton sues two more adult websites | Off the Kuff