Age Verification Proposals Persist Despite Legal Losses

NASHVILLE—Republican lawmakers in the Tennessee state legislature intend to introduce age verification legislation in the upcoming regular legislative session beginning in January 2024.  According to a press secretary for the House Republicans, this is one of several ideas derived from “ongoing discussions by [the] House Republicans about what can be done legislatively to protect the innocence and safety of children.” The Tennessean newspaper indicated that the press secretary believes “[o]ur members remain vigilant and will continue to bring good ideas forward in this effort.” Others across the country disagree that age verification is a “good idea.” The Free Speech Coalition, a trade association that advocates for the adult entertainment industry, has sued in several states with similar age verification laws. The most notable success in the courts is that a federal district judge in Austin, Tex., issued a preliminary injunction blocking a law requiring age verification and labeling for adult websites. The judge criticized the law as unconstitutional.  The Free Speech Coalition has also sued in Utah and Louisiana federal courts. A judge in Utah dismissed the lawsuit brought by the coalition and a plaintiff class of adult entertainment firms on technical grounds. Currently, this lawsuit is being appealed to the Tenth Circuit Court of Appeals in Denver, Colo., for a more in-depth constitutional review of that particular age-gating law. The Louisiana case is currently under review by a federal district judge. Defendants in this case have filed a motion to dismiss on the grounds that the coalition and the plaintiffs lack the jurisdiction to bring a challenge to the age verification law. This is expected on September 20. An official filing in Tennessee is not yet available, being that it is only September, and the Tennessee General Assembly resumes on January 9, 2024. It’s extremely likely that any age verification mandate will pass through the state legislature due to the Republican supermajority in both chambers and the party’s grip on the executive branch. Tennessee Gov. Bill Lee is well known as a hard-lining social conservative who adopted laws that criminalize booksellers and librarians for distributing queer young adult literature in public school libraries. He is also an outspoken critic of the online adult entertainment industry and supports the Heritage Foundation, which leads a coalition of social conservatives that wish to define LGBTQ+ subject matter as obscene and pornographic. Note that age verification measures that are broadly applied to mainstream online platforms are also failing in courts. In the case of NetChoice v. Bonta, a California federal district judge granted a preliminary injunction blocking the California Age-Appropriate Design Code Act on grounds that it violates the First Amendment. Another federal district judge ruled in Arkansas that a social media age verification requirement adopted in that state also violated the First Amendment, granting a preliminary injunction in the case, NetChoice v. Griffin. NetChoice is an advocacy organization representing the largest technology companies in the United States, like Google’s parent company Alphabet, Facebook’s parent company Meta Platforms, TikTok and several other platforms used by millions every day. Photo By Jan Alexander / Pixabay