Alabama House Passes AV Bill Including 'Porn Tax,' Health Labels

MONTGOMERY, Ala.—The Alabama House of Representatives has passed an ambitious age verification proposal that is set to be heard by the Senate Judiciary Committee in the coming days.  State Rep. Ben Robbins, a conservative Republican representing the small city of Sylacauga, introduced House Bill (HB) 164. AVN reported on competing age verification proposals in Alabama in November 2023. Rep. Robbins' bill has moved forward with support from Republican leadership in both chambers. The Republicans maintain a supermajority in both the House and Senate. HB 164 would require so-called "reasonable" age verification measures to be adopted by adult entertainment websites with users logging in from IP addresses local to Alabama. But Robbins' bill would require the levy of a 10 percent use tax for all adult content sold and distributed in the state's digital space. "In addition to all other taxes of every kind, there is levied and shall be collected a tax at the rate of 10 percent upon the gross receipts of any commercial entity operating an adult website for all sales, distributions, memberships, subscriptions, performances, and all other content amounting to material harmful to minors that is produced, sold, filmed, generated, or otherwise based in this state," reads the language of the bill. Funds collected by the levy would fund mental health programs. The bill also includes language that would require adult content producers to participate in record-keeping regulations at the state level. Alabama would be overstepping federal authority if this were the case, given that the U.S. Department of Justice regulates the age and record-keeping requirements for all pornography platforms, foreign and domestic, through 18 U.S. Code Section 2257. Such language could lead to disputes over the supremacy of the federal government to enforce interstate commerce. HB 164 also reiterates that the Alabama legislature recognizes pornography as a public health crisis—which the state formally declared via a March 2023 resolution—and mandates that adult websites publish pseudoscientific public health warnings on their web and marketing assets. Language for the labeling includes warning messages like: "ALABAMA HEALTH AND HUMAN SERVICES WARNING: Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function." "ALABAMA HEALTH AND HUMAN SERVICES WARNING: Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses." "ALABAMA HEALTH AND HUMAN SERVICES WARNING: Pornography increases the demand for prostitution, child exploitation, and child pornography." Other labeling requirements include plastering the phone number to a mental health helpline administered by the Substance Abuse and Mental Health Services Administration (SAMHSA), an agency of the U.S. Department of Health and Human Services.  SAMHSA doesn't recognize porn addiction as a diagnosis, nor does the American Psychiatric Association that publishes the peer-reviewed Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. It is also worth noting that Alabama does not have a state agency named "Health and Human Services." These requirements for labeling are similar to those found in Texas House Bill 1181, which is currently being litigated. A three-judge panel of the U.S. Fifth Circuit Court of Appeals, a notoriously conservative appellate court, struck down health labels in the Texas law as unconstitutional. The Fifth Circuit ruled that House Bill 1181 can only be enforced partly. While the court ruled that age verification was constitutional in this case, it reinstated an injunction on the law's requirement for companies to post pseudoscientific health warnings. Senior U.S. District Judge David Alan Ezra of the Austin Division of the Western District of Texas found that the labeling requirement violates the Zauderer test. Zauderer indicates that a private company's First Amendment rights aren't violated if public entities make it a requirement to compel those companies to share speech that is generally accepted and factual.  "We are not scientific journal editors, much less social scientists, behavioral experts, or neurologists," reads the court's opinion. "Therefore, the record leaves us with no option but to declare that the health impacts of pornography are currently too contentious and controversial to receive Zauderer scrutiny." Rep. Robbins' bill, or at least its health labeling requirement, would likely meet the same challenge, though it would fall under the Eleventh Circuit Court of Appeals. Note that the Fifth Circuit's ruling is simply a judgment on the preliminary injunction issued by Judge Ezra early on during the Texas lawsuit, which is ongoing before the U.S. District Court for the Western District of Texas. The lawsuit is Free Speech Coalition et al v. Paxton. The docket indicates the next action is scheduled for this summer. Should HB 164 be approved by the Alabama Senate, Republican Gov. Kay Ivey is likely to sign it into law.