FSC Sues Louisiana Over Age Verification Mandate

Joining FSC as plaintiffs in the case are Elizabeth Hanson, a military veteran and spouse of an active-duty Coast Guard member residing in Slidell, Louisiana; Andrea Barrica, founder of the sex education site O.school; journalist, educator, and content creator Charyn “Ryn” Pfeuffer; and fan platform JustFor.Fans. The parties are represented by Jeffrey Sandman of Webb Daniel Friedlander LLP and D. Gill Sperlein of the Law Office of D. Gill Sperlein.

“These laws give the state the power to harass and censor legal businesses,” said Alison Boden, Executive Director of Free Speech Coalition. “We, of course, support keeping minors from accessing adult content, but allowing the state to suppress certain speech by requiring invasive and burdensome systems that consumers refuse to engage with is simply state censorship.”

In the complaint, the plaintiffs argue that the new Louisiana laws (collectively referred to in the complaint as the “Acts” or “Louisiana Acts”) “place substantial burdens on Plaintiff website operators, content creators, and countless others who use the internet by requiring websites to age-verify every internet user before providing access to non-obscene material that meets the State’s murky definition of ‘material harmful to minors.’”

According to the complaint, the Acts “violate the First Amendment in several respects.”

“First, they impose a content-based restriction on protected speech that requires narrow tailoring and use of the least restrictive means to serve a compelling state interest, yet they capture a substantial quantity of protected speech without accomplishing their stated purpose of protecting minors from materials they may easily obtain from other sources and via other means,” the plaintiffs assert. “Second, compelling providers of online content to place an age-verification content wall over their entire websites unconstitutionally labels them as ‘adult businesses,’ with all the negative implications and ramifications that follow. And third, by requiring the use of some particularized approval method as a condition to providing protected expression, the Acts operate as a presumptively-unconstitutional prior restraint on speech.”

The complaint also alleges that the Acts “violate the Fourteenth Amendment in myriad ways… because they fail to provide a person of ordinary intelligence with fair notice of to whom the Acts apply, what is required, and what is prohibited, the Acts are impermissibly vague, violating the procedural component of the Due Process Clause.”

As noted in the FSC’s complaint, Louisiana’s “attempts to restrict access to online content are not novel”, and courts have previously struck down multiple statutes that attempted to impose age-verification on websites that publish and/or distribute content that fits the Acts’ definition of “harmful to minors.”

“The United States Supreme Court invalidated a federal law restricting internet communications deemed harmful to minors on First Amendment grounds in Reno v. ACLU,” the plaintiffs note in the complaint. “The Third Circuit invalidated a second such federal law on First Amendment grounds in ACLU v.  Mukasey… And in state after state — including Louisiana — laws containing content-based restrictions on internet communications deemed harmful to minors have been held unconstitutional.”

“For decades, our industry has voluntarily and enthusiastically worked with filters that allow parents and others to easily block adult sites,” Boden noted. “Those who wish to can do so easily, and the Supreme Court has ruled that this is preferable to government-mandated censorship. We are again asking the courts to reject these unreasonable and dangerous restrictions on a free internet.”

In addition to violating the First and Fourteenth Amendments of the U.S. Constitution, the plaintiffs argue that the statutes violate the Commerce Clause of the Constitution, and with respect to plaintiff JFF Publications, the operator of the JustFor.Fans platform, violate the Supremacy Clause and Section 230 of the Communications Decency Act.

The plaintiffs are seeking declaratory judgment holding that the Acts violate the First and Fourteenth Amendments to, and the Commerce and Supremacy Clauses of, the U.S. Constitution, a preliminary injunction against enforcement of the Acts, as well as legal costs and attorneys’ fees.

“The First Amendment protects our right to freely access legal content and ideas without government interference,” said Jeff Sandman, New Orleans-based counsel for the FSC. “We’re fighting not only for adult businesses but for the right of legal adults to use the internet without government surveillance. Showing your ID in a checkout lane is simply not the same as submitting it to a government database.”

You can read the full FSC complaint here. The plaintiffs’ motion for a preliminary injunction can be found here. For the full text of the FSC’s statement about the lawsuit, click here.