by Logan Finney, Idaho Reports

The Idaho Senate passed legislation Thursday that would make online pornography publishers and distributors vulnerable to civil liability if a minor accesses harmful material on the internet.

“Our kids are continuously exposed to pornography, and our current laws don’t effectively protect them,” said bill sponsor Sen. Ben Toews, R-Coeur d’Alene. “What you have before you is an effective solution. It uses third-party age verification as a way to block that content from children.”

House Bill 498 would require websites where at least one-third of the content is pornographic to perform “reasonable age verification” to prevent minors from accessing the harmful material. The House unanimously passed the bill on February 14.

“The technology exists. They have the responsibility — I think it’s their duty — to make sure the material that’s adults-only is just distributed to adults,” said Sen. Scott Herndon, R-Sagle.

The bill would require adult websites to confirm the age of their users through a commercial age verification tool or by submission of a digitized identification card.

“It’s well-written, it’s got detail. The sponsors seem to have thought of all the contingencies,” said Sen. James Ruchti, D-Pocatello. “It’s going to be used against a corporation that has disseminated this material, so a single solitary single citizen going toe-to-toe with a corporation.”

The bill would create a private cause of action, allowing minors and parents to sue in civil court for statutory damages of at least $10,000 and injunctive relief to stop the website from allowing minors to access the harmful content.

“This is the parents that are put in the driver’s seat to protect their children, it’s not meant to be the state,” Toews said.

Challenges to similar laws in other states

Texas Attorney General Ken Paxton sued the parent company of the adult website Pornhub in February, 404 Media reported, in order to enforce that state’s age verification law.

The outlet reports the adult website network has blocked access for all users, not just minors, in response to age verification laws in Montana, North Carolina, Virginia, Louisiana, Arkansas, Mississippi, and Utah.

Ars Technica reports that the U.S. Fifth Circuit Court of Appeals earlier this month vacated an injunction previously blocking Texas’s age verification law from going into effect, ruling 2-1 that “the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography.”

Just hours before the Idaho Senate reconvened Thursday afternoon, 404 Media reported that Pornhub and associated websites had blocked access to users in Texas.

While blocking access to its typical pornographic content, the company is urging users in some states to contact their respective lawmakers with support for device-based age filtering, citing privacy concerns with requiring users to submit identification to access their websites.

“Not only does this impinge on the rights of adults to access protected speech,” the websites reportedly say when accessed from a Texas IP address, “it fails strict scrutiny by employing the least effective and yet also most restrictive means of accomplishing Texas’s stated purpose of allegedly protecting minors.”

“We believe that the only effective solution for protecting minors and adults alike is to verify users’ age on their device and either deny or allow access to age-restricted materials and websites based on that verification,” the statement reads.

Opposite ends of the pipeline

A different bill the Senate passed last month would require age verification filters on smartphones and tablets activated for minors within the state of Idaho. That bill, SB 1253, was assigned to the House State Affairs Committee on February 13 but has not yet received a hearing.

Committee chair Rep. Brent Crane, R-Nampa, told Idaho Reports on Thursday that he was still doing research on the device filter bill. Crane said he was talking with industry representatives from Apple and Google about whether its requirements would be workable. He also said he was determining whether the members of his committee want to pass another age verification bill.

“That one covers apps, it covers websites, it covers PlayStations,” Crane said of HB 498. “If it covers everything, some are asking why do another one?”

The sponsor of the device filter bill, Sen. Kevin Cook, R-Idaho Falls, stood in support of the website filter bill on the Senate floor Thursday.

“I don’t care how you do it, as long as it’s constitutional,” Cook said.

“If we’re going to disrupt the pornography world, the pornography business, it’s going to take something at each level,” Cook said. “If you want to gamble, then we ask you to verify your age. If you want to buy wine online, then we ask you to verify your age. This is nothing new.”

The Senate unanimously passed HB 498 and it now heads to Gov. Brad Little’s desk.

“I’m hopeful we can stem the tide that’s bringing this into our homes and bringing our children this type of horrible content,” Toews said. “I think this is going to make a difference.”

A First Amendment question

“Free speech extends to some sexually explicit material, but it does in a lesser way,” College of Idaho faculty member McKay Cunningham told Idaho Reports in an interview last month.

“Any time that government attempts to limit speech and infringes upon that First Amendment fundamental right,” Cunningham said, “you have to have an infringement, but if you have an infringement that typically kicks the judicial scrutiny into strict scrutiny.”

In layman’s terms, laws passed by the government are presumed constitutional until proven otherwise. However, if a law infringes on constitutionally protected fundamental rights, then strict scrutiny requires the government to justify to the courts why it must infringe on citizens’ rights in order to achieve the goals of the legislation.

“Which requires a compelling government interest, and that the law be narrowly tailored,” said Cunningham. “It has to be very narrowly tailored just to achieve that compelling government interest. Such that, if the law could be drafted some other way so that it does not impact the freedom of speech but gets to the same goal of the law, then it violates strict scrutiny. All of which to say, that’s very limiting if I’m a legislator.”

HB 498 contains several paragraphs of legislative intent language in which it cites several U.S. Supreme Court cases on state sovereignty and severability of statutory applications, and spells out its view of pornography as “a public health crisis and having a corroding in fluence on minors.”

“If I put myself in the shoes of a legislator trying to create this, maybe I’m not as concerned about strict scrutiny review because we’re talking about prurient interests. We’re talking about sexually explicit material,” Cunningham said. “And on top of that, pornography, so you’ve got the Miller Test.”

The Miller Test is a three-pronged approach created by the U.S. Supreme Court to determine whether or not specific content qualifies as pornographic, and it is used in HB 498 to define material harmful to minors. Lawmakers have referenced the Miller Test at length over the last several years while debating whether there are “obscene materials” available to children in the state’s school and public libraries.

“I would feel a little more confident as a legislator creating a law that, arguably, violates free speech, but — because I’m in this realm of pornography and sexually explicit content — then I would feel safer that strict scrutiny wouldn’t knock it down,” Cunningham said.

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