Earlier this week, I testified in Missouri on behalf of HB1993, a bill that would require age verification for porn websites to prevent minors from accessing pornographic material. Eight of these age verification bills have already passed in the United States, and as you can see from the so-called Free Speech Coalition — the porn industry’s trade association — that number is likely to increase significantly in 2024.
Dark gray states have already passed age verification legislation. Blue states are considering age verification legislation this year.
One of the Missouri legislators, a libertarian-minded Republican named Rep. Tony Lovasco who appears to oppose the legislation, asked me a pretty good question:
“You said in your opening that this is a good first step. What’s the second step?”
This is a question I’ve heard from a number of you. I wanted to share my response here.
State age verification laws are a “good first step.”
What’s the second step? pic.twitter.com/m7u9CzxSPA
— Jon Schweppe (@JonSchweppe) February 9, 2024
Schweppe: “Well, I think long-term to do age verification for kids you’re going to have to have a state and a federal approach. You can do state laws, but ultimately jurisdiction — Missouri’s jurisdiction — is going to be limited in terms of who they can prosecute. We’re not going to be able to go after Eastern Europe.
“So, ultimately, I think what you’re going to have to do is to have the states pass all these types of bills. You’ll see that they’re ineffective in some capacity, and it’ll create a demand for Congress to act at the federal level. And then you could have DOJ take a pretty aggressive approach. I think back to the Unlawful Internet [Gambling Enforcement] Act that shut down online poker in this country… it was back 15 years ago… DOJ seized those domain names and basically shut down online poker in this country even though those were foreign actors. I think that’s the type of thing you could maybe do at the federal level. I know Mike Lee is exploring this right now with a bill called the SCREEN Act. But, look, we look at the states as the laboratories of democracy. Missouri has an opportunity here to really go on the books and say this is what we support, we want to protect kids in our state. And then I think Congress is always slower than the state legislatures, so… maybe they act later.”
Lovasco: “Given that the Internet is a worldwide body of information, and the vast majority of the humans currently in existence do not live in the United States, even if we passed something similar at the federal level, would not the vast majority of pornography be hosted elsewhere and not subject to our jurisdiction and wouldn’t that simply be the venue by which kids would ultimately consume their content?”
Schweppe: “You would have to explore that. But I think if you really wanted to have an aggressive — let’s say Joe Biden wins his second term and decides this is what he wants to do. I think he could go in there, empower DOJ, and look at these websites, and if these websites, foreign actors, are violating United States law, DOJ could act. But again these are discussions that will have to take place at the federal level. The reason I say first step is that our goal at APP is explicit. We want to do age-gating for kids with porn. We think that kids under the age of 18 shouldn’t be accessing this, that there’s a compelling state interest in protecting them from this content, and so this is the best place to start.”
Lovasco: “So one last comment I guess going back to my previous concern I addressed with the Congresswoman about unintended consequences and ultimately the scope of what this opens the door for, what you just described there with the federal government pulling down websites or blocking access at the federal level nationwide, would effectively be not all that different from what China does to its citizens with the Great Firewall. This is very concerning to me in the scope. I agree with your intentions and I certainly don’t want minors accessing this material, but I just am not convinced that there is any way to technologically make a dent without going down that road.”
Schweppe: “So I agree with your concern because the First Amendment is pretty good — generally support that — but I think that when it comes to pornography for minors, even the Supreme Court case you mentioned earlier that took down COPA, Reno v. ACLU, Ashcroft v. ACLU, they mentioned that there was a compelling state interest in protecting minors, that this wasn’t speech for them. I think the real question is can we do this in a way as you mentioned that is using the least restrictive means possible to protect adult speech. I disagree with Reno that pornography is speech obviously, but look, that is what we are living under, and in our opinion at our organization these bills could comport with Reno and with Ashcroft.”
Read American Principles Project’s age verification policy brief here.