The War on Porn Regular Updates about the Assault on The Adult Industry
Related Articles
In a country where it seems like lawsuits get filed at the drop of a hat – particularly if the hat is quite hard, quite heavy and falls on someone’s toes, causing both physical injury and extreme emotional distress – the fact that our courts do make plaintiffs jump through at least a minimal set of hoops can be something of a comfort.
For example, if I get into a fender bender with someone in California, but that person lives in New York, they probably can’t haul me into court in New York to make me face a lawsuit there, simply because New York happens to be the plaintiff’s state of domicile. They’d likely have to sue me in California, due to the way the courts handle the question of personal jurisdiction.
As you may have heard, a district court in Kansas applied this logic in dismissing a couple lawsuits filed against companies that operate adult websites, because a plaintiff there alleged those sites are not complying with the state’s age verification requirements for adult sites.
Among other things, judge in the case, U.S. District Judge Holly Teeter, wrote in her decision dismissing a lawsuit against Titan Websites that “merely intending that users accessing its content be able to do so from a wide geographic area is not the same as purposefully directing one’s activities at a forum.”
“Technical steps taken to make a universally accessible website easier for all users to access no matter where they are located is no more purposeful direction than the act of setting up the website in the first place,” Teeter added. “And just like the act of setting up a website, were the indiscriminate use of a CDN or other technologies to indiscriminately facilitate content delivery enough, ‘then the defense of personal jurisdiction, in the sense that a State has geographically limited judicial power, would no longer exist.’”
Teeter also wrote that her reasoning “does not mean that a website owner’s use of a CDN is never relevant” and “does not mean that a website owner’s use of a CDN could never show purposeful direction.”
“It does mean that more is needed to determine how the CDN is used and whether the CDN is being used to target a forum or an immediate region of which the forum is a part,” Teeter wrote. “The Court need not dissect the contours to resolve this case. Here, Plaintiff simply alleges that a CDN is being used and that the CDN has servers near the forum because logically it must. Defendant responds with evidence that it uses a third-party web-hosting service and that it does not know or care where the CDNs are located. This record is not enough to carry Plaintiff’s admittedly light burden.”
This dismissal of this case, as well as Teeter’s decision dismissing an identical case against a company called ICF Technology, is certainly good news for other adult businesses that might find themselves hailed into court over alleged violations of a state’s age verification law. They are not, of course, the end of the story.
The plaintiff is likely to appeal these decisions, whereupon the matter will go to the Tenth Circuit Court of Appeals. I’m no lawyer and I don’t have much to offer in terms of a prediction as to how the Tenth Circuit might ultimately rule. I just know that I don’t have much confidence in how the next court up the chain, the U.S. Supreme Court, might rule, should they take up the question.
Having found the age verification law passed in Texas to be constitutional, it wouldn’t surprise me one bit if SCOTUS decided that merely being accessible in a state creates a sufficient “minimum contact” with any given state for a court there to assert personal jurisdiction.
Still, at least for the time being, Teeter’s decisions represent something of a victory for the porn side of the War on Porn. Whether that victory is lasting or ephemeral remains to be seen. Fingers crossed.
