Anti-Censorship Bill Could Protect U.S. Sites From Foreign Age Verification Laws

WASHINGTON — A newly introduced bill in Congress could limit the ability of U.S. courts to enforce foreign laws that restrict speech protected by the First Amendment, a proposal that could potentially extend to some foreign age verification requirements.

Republican Rep. Michael Rulli of Ohio introduced the Guaranteeing Rights Against Novel International Tyranny and Extortion (GRANITE) Act on Thursday. The legislation would prevent U.S. courts from recognizing or enforcing “a foreign judgment, or a fine, order, or demand issued by a foreign court or a foreign state, enforcing a foreign censorship law.”

Under the bill, a “foreign censorship law” is defined as any foreign law that “has the primary purpose or substantial effect of restricting or penalizing expression, expressive conduct, or expressive association; targets expression, expressive conduct, or expressive association based on its content, viewpoint, or speaker identity; or compels disclosure that would reasonably chill that expression, expressive conduct, or expressive association; and would conflict with the protections of the First Amendment of the United States Constitution if recognized in the United States.”

That definition could raise questions about whether age verification requirements, including provisions contained in the European Union’s Digital Services Act (DSA) and the United Kingdom’s Online Safety Act (OSA), might qualify as foreign censorship laws. If they do, the GRANITE Act could potentially prevent U.S. courts from assisting with enforcement actions against American adult websites, including efforts to collect foreign fines. Governments abroad would still retain the ability to take action within their own jurisdictions, such as blocking access to U.S.-based websites.

Free-speech advocates have argued that age verification requirements can restrict expression based on content and potentially chill lawful speech, two considerations that could factor into whether such measures are classified as censorship under the GRANITE Act. The legislation was conceived by attorney Preston Byrne, who has represented online forum 4chan in its dispute with U.K. media regulator Ofcom over efforts to require the platform to implement age verification measures intended to prevent minors from accessing pornography.

The Supreme Court, however, addressed the First Amendment implications of age verification in its decision in Free Speech Coalition v. Paxton. The court declared that “the First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from their perspective. That power includes the power to require proof of age before an individual can access such speech. It follows that no person — adult or child — has a First Amendment right to access such speech without first submitting proof of age.” The court upheld the constitutionality of state age verification laws when they only “incidentally” burden adults’ protected speech. That ruling suggests foreign age verification laws meeting the same standard might not qualify as “foreign censorship” under the GRANITE Act.

Industry attorney Lawrence Walters said that if the GRANITE Act becomes law, U.S. companies facing foreign judgments stemming from alleged violations of age verification requirements could argue that the underlying laws meet the legislation’s definition of foreign censorship.

“It would be up to a reviewing court whether the Supreme Court’s decision in Paxton precludes these arguments,” Walters explained. “Each foreign law would need to be independently evaluated against the holding of Paxton. Some foreign laws go far beyond sexual expression when defining ‘harmful content.’ Therefore, the Paxton reasoning may not apply to some of these laws, thereby potentially shielding U.S. operators from foreign judgments.”

Industry attorney Corey D. Silverstein also said the GRANITE Act could give U.S.-based companies a significant defense against domestic enforcement of certain foreign online age verification laws if those requirements meet the bill’s definition of censorship, “particularly when their application depends on the content being accessed or when they require users to disclose identifying information as a condition of accessing protected speech.”

“The analysis would ultimately depend on the precise coverage, verification methods, privacy protections and enforcement mechanisms of the particular foreign law,” Silverstein said. “The more difficult requirement is that recognition of the foreign law must conflict with the First Amendment.

“In Free Speech Coalition v. Paxton, the Supreme Court held that Texas’ requirement for age verification on websites substantially devoted to sexual material harmful to minors imposed only an incidental burden on adults’ protected speech,” Silverstein elaborated. “Accordingly, if a foreign AV law is directed specifically at minors’ access to material that is obscene as to minors, allows adults access after reasonable age verification, and is adequately tailored, then Paxton would support an argument that recognizing the law would not conflict with the First Amendment. In that circumstance, the law might fall outside GRANITE’s definition.”

Rulli is not alone among elected officials in supporting federal legislation addressing the enforcement of foreign speech restrictions. Republican Sen. Eric Schmitt of Missouri said last year that he planned to introduce similar legislation. Wyoming lawmakers also considered a state version of the GRANITE Act earlier this year. The measure cleared the state House but did not advance in the state Senate.

Trump administration officials have repeatedly described European content regulations as threats to free speech. The administration has also imposed visa restrictions on EU figures it views as leading “efforts to coerce American platforms to censor, demonetize, and suppress American viewpoints they oppose.” Those actions could signal administration support for the GRANITE Act if the legislation advances through Congress.

The GRANITE Act has been referred to the House Committee on the Judiciary.