The War on Porn Regular Updates about the Assault on The Adult Industry
A couple years back, when many of the state laws requiring age verification on the part of adult websites were merely proposals floating around in state legislatures, a state legislator from one of the few states that already had such a law on its books publicly noted that Pornhub had begun blocking all traffic from the state, which meant the law was “already working” as intended.
I remember seeing a clip online of the legislator saying this and wondering if she knew just how right she was. The law she was talking about may have been presented as a measure to deter kids from accessing online porn, but in truth, it was about making it harder for anyone to access online porn.
While you might not realize it if you were to review some of the blatantly unconstitutional stuff they dream up, most state legislators do know they can’t simply ban speech they don’t like. They know this is true whether the speech they dislike is sexually-explicit material like porn, speech intended to “annoy” or “offend” people who share their sensibilities or speech from Jimmy Kimmel.
Legislators, censorious activists and other vile creatures of darkness also know the next best thing to a ban is an effective effort to cow people into silence, whether by criminal law or civil sanction.
When attorneys and scholars who are familiar with the First Amendment and free speech issues discuss these things, you’ll often hear them reference the “chilling effect,” which in the context of legislation refers to “government unduly deterring free speech and association rights through laws, regulations or actions that appear to target activities protected by the First Amendment,” as the Free Speech Center at MTSU puts it.
When the Supreme Court recently upheld the Texas law requiring websites that offer over a certain amount of content deemed to be “harmful to minors” to verify the age of users before displaying any such content, the court effectively said the chilling effect of the Texas law is insubstantial, easily outweighed by the government’s “compelling interest” in deterring minors from accessing pornography.
A casual observer might think: “Good! Why shouldn’t adult sites be required to do the same thing the store on the corner has to do before selling someone porn?” But the casual observer maybe hasn’t thought this one all the way through.
The casual observer probably hasn’t considered the difference between briefly flashing your ID at a bored store clerk who probably didn’t give it much of a look anyway before waving you onward, and uploading a copy of your government issued ID, with your home address on it, to some third-party age verification service about which you know nothing.
The casual observer also may not have thought much about the websites that aren’t even arguably “porn sites,” but could still host enough content deemed “harmful to minors” to be covered by the law.
Worse still, this chilling effect is attached to a measure that isn’t particularly effective at its stated purpose. When Louisiana’s law was first passed, it took a matter of minutes for users to find a workaround – one that didn’t even require knowing what the acronym “VPN” signifies.
As a beloved old teacher of mine used to say about things of dubious value, these laws appear to be “worth their weight in sawdust” – except when it comes to their chilling effect.
As Hannah Wohl, an associate professor of Sociology at the University of California, Santa Barbara, put it in a post for The Hill, age verification laws “fail to protect minors and threaten the free speech of all Americans in ways that go far beyond pornography.”
“This chilling effect is by design,” Wohl added. “Pornography has long been the canary in the coal mine for other restrictions against free speech. Indeed, some conservatives have acknowledged that age verification laws are a back door to fully criminalizing pornography.”
No, age verification laws are not “blocks” or “bans” on pornography. But they certainly are barriers – and we’re not supposed to go around erecting barriers to protected speech in America, willy-nilly. There’s supposed to be a damn good reason (that “compelling interest” of the government’s), some indication that the law serves its purpose in furthering that interest, and an assurance that the law doesn’t burden too much speech that’s legal for adults to consume in restricting minors’ access to that same speech.
Or, as Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy and Technology Project, put it when talking about the Supreme Court’s decision on Free Speech Coalition v. Paxton: “With this decision, the court has carved out an unprincipled pornography exception to the First Amendment. The Constitution should protect adults’ rights to access information about sex online, even if the government thinks it is too inappropriate for children to see.”
Unfortunately, to many of those who support and advocate for these laws, the chilling effect bemoaned by their critics is a design feature, not a bug.
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