Analysis: Calif. Age Verification Would Penalize 'Indecency'

LOS ANGELES—A conservative Republican lawmaker in California has proposed a "copycat" mandatory age verification bill similar to others introduced and adopted across the United States. Like other proposals, the California bill utilizes model legislation from a far-right think tank that seeks to use obscenity and indecency as interchangeable terms. AVN reported earlier this week on Assembly Bill (AB) 3080, introduced in February 2024 by Asm. Juan Alanis, a Republican representing Modesto. AB 3080 is officially short-titled to include age verification requirements for websites that feature so-called obscene and indecent material. Obscenity and indecency, though both terms that involve content that could be viewed as offensive, diverge in their legal and cultural implications. Obscenity denotes highly offensive or sexually explicit material, evaluated through the Miller test, which considers its appeal to prurient interests, the portrayal of offensive sexual conduct, and lack of serious value. It isn't safeguarded by the First Amendment and is often considered criminal. Conversely, indecency covers morally or socially offensive material, particularly related to sexual conduct or language, without necessarily meeting the legal obscenity threshold. Unlike obscenity, indecency lacks a precise legal definition and varies depending on cultural and individual perspectives. AB 3080 uses these terms interchangeably and is structured as a "bounty law." A bounty law is a term used in political science and legal studies to describe a law that is only enforceable through private civil action decided by local and state courts. It is modeled similarly to an age verification law adopted in Utah, which led Aylo-owned Pornhub to geo-block the entire state and Free Speech Coalition to sue the government. A federal district judge dismissed the lawsuit, but FSC appealed it to the U.S. Tenth Circuit Court of Appeals, and litigation is ongoing. This is beside the point, though. What is worth highlighting is the design of AB 3080 and the intention to completely censor otherwise legal forms of speech on the internet. Origins of AB 3080 AB 3080 is based on model legislation circulated by a far-right network called Center for Renewing America and Citizens for Renewing America. The center is a public policy think tank organization that helps perpetuate the "America First" ideology and the political positions of former President Donald Trump. Citizens for Renewing America is the center's activism branch. Like other well-funded right-wing groups, like The Heritage Foundation, it circulates model state legislation. The Center for Renewing America is a member group of the Project 2025 coalition, centrally coordinated by Heritage, that presents itself as a pre-transition project for a potential Trump win in the 2024 presidential election. AVN has reported on Project 2025 in the past and its belief that pornography isn't subject to First Amendment rights and that anyone the group views as pornographers should be imprisoned. Note that Project 2025 refers to "pornography" as a catch-all term to include LGBTQ+ subjects in public schools, queer literature and art, and any other type of material that isn't even considered pornography or "obscene" from the legal standpoint of being potentially harmful to minors. For example, via Source Watch, Center for Renewing America president Russ Vought appeared on a right-wing podcast calling trans identities a "contagion." Media Matters for America analysts accuse the center and its citizens' group of propagating Christian nationalism and far-right ideology. Asm. Alanis is propagating a Christian nationalist vision of a "porn-free" society with the introduction of AB 3080. Here's how: A further examination of its current text reveals that it distinguishes its intended target as websites containing "material harmful to minors"—which it defines as "any picture, image, graphic image file, film, videotape, or other visual depiction" that qualifies as either "obscene," "indecent" or child pornography. The bill defines "obscene" material using, as it notes, the three-pronged Miller test established by Miller v. California—that is, any type of media which "would be found by the average person, applying contemporary statewide standards, to appeal to the prurient interest," "depicts, describes, exposes, or presents sexual conduct in a patently offensive way" or "taken as a whole, lacks serious literary, artistic, or scientific value." The definition given in the bill for "indecent" material is very similar, but makes a couple of subtle differentiations in two of its three classifiers, as follows: "Would be found by the average person, applying contemporary statewide standards, to be generally harmful to minors," "depicts, describes, exposes, or presents sexual conduct in a patently offensive way," or "taken as a whole, lacks serious literary, artistic, or scientific value for the purpose of educating minors." A comparison to a model bill drafted by Adam Candeub of the center and two others, Clare Morell of the Ethics and Public Policy Center and Hayden Parsons of Michigan State University, shows very similar language in its definition of "indecent": This is not the only similarity between the model bill and the AB 3080 text Asm. Alanis filed with the California state legislature. Also, as noted above, model bill co-author Clare Morell represents the Ethics and Public Policy Center, which is part of Project 2025. Candeub and Morell both served in the Trump Justice Department, and if Trump wins in 2024 and returns to the White House, they are expected to be named to senior administration positions. Candeub and Morrell have publicly criticized existing internet regulations, including the controversial Section 230 of the Communications Decency Act of 1996. It is worth noting that Candeub, a far-right law professor at Michigan State University, has been criticized for propagating unpopular and outdated viewpoints on free expression. But more to the case at hand, the text of the model bill above—as aped in the proposed bill before the California legislature—directly conflicts with existing case law. Obscenity, Indecency and Beyond Once again, while Asm. Alanis' proposed bill presents similar definitions for each, nothing that is classified as "indecent" is legally "obscene." According to the Congressional Research Service, antiquated federal statutes permitted the government to regulate media that was considered "indecent" and "obscene." But, the change in case law as to what can be considered technically obscene, therefore not protected by the First Amendment, came to fruition with the U.S. Supreme Court ruling in the aforementioned Miller v. California case, which established that something cannot be considered obscene unless it meets the three-pronged Miller standard or "test." Alanis' bill is essentially pushing for an "obscene to minors" standard using an extremely broad definition. What is additionally problematic is how Candeub and Morell want to rely on Federal Communications Commission (FCC) rules on obscene, indecent, and profane broadcasts. This is a bid to try and regulate online content, which is wholly different from regulating programming broadcast by a TV or radio station. The rule mentioned in both the model bill and AB 3080 is Section 73.3999 of Title 47 of the Code of Federal Regulations. Section 73.3999 specifically states, "No licensee of a radio or television broadcast station shall broadcast any material which is obscene" and "No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent." Technically speaking, there is a clear difference between broadcasting and internet streaming. Live broadcasting versus live streaming all comes down to the nature of the signal being sent. A single signal being picked up by separate devices, often licensed by the FCC and a local or state government, is technically a broadcast. Multiple signals sent to multiple receivers are technically streaming, often simultaneously and at high volumes. Most of these signals are considered "streams" and are transmitted online and subject to internet regulations (soon the FCC's net neutrality mandate), not radio or television regulations. It is also worth noting that regulations on broadcasting obscene, indecent or profane materials have always been tested in federal courts, such as Section 230 and laws that seek to segregate age content on the internet through restrictive measures. One of the most notable examples is when the Supreme Court ruled in the landmark case United States v. Playboy that Section 505 of the Telecommunications Act of 1996 violated the First Amendment rights of late-night advertisers and showrunners. Section 505 said cable television providers must scramble channels that broadcast materials potentially obscene to minors, indecent or profane. However, the court ruled that cable TV networks can air this material between 10:01 p.m. and 5:59 a.m., which is already highlighted in Section 73.3999 of Title 47 of the Code of Federal Regulations. Asm. Alanis and the authors of the model bill are either aware of this and wish to force a constitutional fight in the courts or are completely ignorant of current telecom regulations. AB 3080 and other bills based on the Center for Renewing America's model legislation are sophomoric attempts to censor otherwise legally protected forms of speech, barring the element that age verification in itself is a constitutionality hot button that groups like the Free Speech Coalition wish to see litigated at the U.S. Supreme Court. Considering many standards, outside of the rash of mandatory age verification proposals that feature criminal penalties, AB 3080 is likely one of the more extreme bills AVN has tracked since such legislation became popular among religious conservatives in 2022. The likelihood of AB 3080 advancing past the committee phase is low due to the California state legislature's supermajority held by Democrats.