The “PAVE Act” is Now Law in Louisiana. Can it Survive Court Scrutiny?

As the Free Speech Coalition observed in its summary of the bill linked above, ACT440/HB 142 created “a private right of action to sue adult websites that “do not use age verification software for damages inflicted on minors who are exposed to explicit material.” Under the law, acceptable age verification methods under the law include “include government-issued ID or any ‘commercially reasonable method’ that uses transactional data to verify age.” The law also requires that data used to verify the age of users not be retained by the website or by third-party software.

Since ACT440/HB 142 became law, what has not materialized is a flurry of civil lawsuits targeting adult websites by citizens in the state – or any such lawsuits at all, at least so far as we know. Whether in disappointment with that fact, or due to Schlegel’s stated frustration with sites that have “simply disregarded” the law, Schlegel decided it was time to enable Louisiana’s Attorney General to take direct action against noncompliant adult sites.

Under the newly signed PAVE Act, any “commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be subject to civil penalties as provided in this Section if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.”

The bill allows something of a “grace period” for companies to come into compliance with the law once notified by the office of the Attorney General, giving the targets of the AG’s investigations “a period of time of not less than thirty days to comply.”

Any commercial entity that violates the PAVE Act “may be liable for a civil penalty, to be assessed by the court, of not more than five thousand dollars for each day of violation.” Revenue from the penalties are “to be paid to the Department of Justice, in order to fund the investigation of cyber crimes involving the exploitation of children.”

In addition, under the law the attorney general “may request and the court may impose an additional civil penalty not to exceed ten thousand dollars for each violation of this Section against any commercial entity found by the court to have knowingly failed to perform reasonable age verification methods to verify the age of individuals attempting to access the material.” Revenue from those penalties would go to the Department of Justice, as well.

Each violation of the Pave Act “may be treated as a separate violation or may be combined into one violation at the option of the attorney general,” the new law specifies.

The statute defines “material harmful to minors” as: “Any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest. (b) Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors: (i) Pubic hair, anus, vulva, genitals, or nipple of the female breast. (ii) Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals. (iii) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act. (c) The material taken as a whole lacks serious literary, artistic, political, or scientific value for minors.”

“Reasonable age verification methods” means “verifying that a person seeking to access the material is eighteen years of age or older by using any of the following methods:  (a) Providing a digitized identification card as defined in R.S. 51:3211.  (b) Requiring the person attempting to access the material to comply with a commercial age verification system that verifies in any of the following ways: (i) Government-issued identification. (ii) Any commercially reasonable method that relies on public or private transactional data to verify the age of the person attempting to access the information is at least eighteen years of age or older.”

The term “substantial portion” means “more than thirty-three and one-third percent of total material on a website,” which meets the definition “material harmful to minors” provided by the Act.

You can read the full text of the PAVE Act here.

The good news about the PAVE Act, such as it is, is there is a clearer path to challenge the statute than exists for ACT440/HB 142, the law that went into effect earlier this year.

Attorneys I’ve spoken to about laws like ACT440/HB 142 explained that one of the open questions about statutes that create a private right of action, as opposed to one enforced through direct government action (as the PAVE Act necessarily would be), is who has standing to challenge the law as a “pre-enforcement” action? In other words, with no lawsuits filed under ACT440/HB 142 thus far, it’s not clear that a court will permit a challenge to that law, finding such a challenge to be premature.

“The fact that the new law allows the state Attorney General to enforce the age verification requirements should make a constitutional challenge easier than the prior law, since there is an actual dispute between companies subject to the new law and the Attorney General which is empowered to enforce the law,” Attorney Larry Walters of the Walters Law Group told YNOT. “An order prohibiting the Attorney General from enforcing the law will redress the injury to the potential plaintiffs.”

Now that Gov. Edwards has signed the PAVE Act into law, potential plaintiffs will have a strong case for the court to strike down the legislation, based on the history of challenges to similar state law provisions in the past, Walters said.

“The constitutional issues that could be raised in a challenge to this law are the same which resulted in invalidation of state-level age verification laws throughout the country in the past, including violation of the First, Fifth, and Fourteenth Amendments along with the dormant Commerce Clause,” Walters explained. “The age verification requirements impose a content-based restriction on protected speech; the prohibitions are overbroad; and the definitions (or lack thereof) are vague since they do not provide clear notice of the prohibited conduct. Further, the restrictions impose an undue burden on interstate commerce conducted via the Internet by adult website operators.”

Now that it has been signed by Gov. Edwards, the PAVE Act will go into effect August 1, 2023.