Age Verification Law Could Face Legal Challenge
BATON ROUGE (The Center Square) — A new Louisiana law regarding age verification for pornographic websites is drawing controversy for several reasons, despite overwhelming support from all but one member of the Louisiana Legislature.
Act 440 took effect on Jan. 1 to create a cause of civil action for Louisiana parents whose children access pornographic websites that do not use an age verification process. The legislation, sponsored by Rep. Laurie Schlegel, R-Jefferson, passed both chambers of the Republican-controlled Legislature in June with little debate and only a single nay vote — from Rep. Mandie Landry, D-New Orleans.
“It just lends itself to absurd implications,” Landry told The Center Square. “The question is what is pornography or obscenity, who gets to decide, and how is that enforced? So much of that is in the eye of the beholder.”
Last week, Schlegel took to Twitter to defend the law, which has faced criticism for restricting personal freedoms, as well as questions about legality and enforcement.
“This law had bipartisan support and passed almost unanimously in both the House and Senate with close to 50 co-authors, including Democrats and Republicans. It was not a Republican win but a win for children in Louisiana. This bill is about protecting children, not limiting adults,” she posted. “And thankfully, the technology today allows us to not only protect children from the dangers of online pornography but also protect the privacy of those adults who want to view this material.”
The new law has convinced the adult site PornHub to implement age verification for Louisiana residents, while other sites reportedly have yet to comply. While the state’s LA Wallet online identification system streamlines the age verification process, it remains unclear how and where sites that don’t comply will be held liable.
The legislation contends “pornography is creating a public health crisis and having a corroding influence on minors,” who are accessing sites at younger ages than in the past.
“Pornography contributes to the hyper-sexualization of teens and prepubescent children and may lead to low self-esteem, body image disorders, and increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior,” the law reads.
“Online pornography is extreme and graphic and only one click away from our children. This is not your daddy’s Playboy,” Schlegel posted to Twitter. “And if pornography companies refuse to be responsible, then we must hold them accountable. This law is the first step.”
But Landry contends that holding sites accountable may not be as straightforward as Schlegel suggests.
She questions “how a state court can hold a company in another country or state accountable” for following the law when interstate commerce and the internet are generally under federal jurisdiction.
She has also raised concerns about privacy, as “data breaches happen all the time.”
“Adults have the right to do what they want in their homes,” Landry said, arguing the age verification is a “high burden considering the risk of a data breach.”
Landry also noted that the law only applies to sites with at least a third of material that’s “patently offensive with respect to minors,” and pointed to existing technology that allows parents to shield harmful online content from their children.
“If 20% is explicit materials and 80% is children’s content, the law wouldn’t apply to that,” she said.
Those issues and others were seemingly glossed over during the legislative process, but could become key components to any legal challenge. Landry believes many lawmakers “didn’t understand the problems” with the bill, while others were concerned with the optics of opposing measures to protect minors from porn.
“My constituents are more likely to understand the legal and ethical implications,” she said. “I have space to vote alone on certain issues.”
The public backlash and potential lawsuits stemming from implementation is a sign that lawmakers should do more to vet legislation before approval, Landry contends, though she admits that’s difficult because of the low pay and small staff in the Legislature.
“So much legislation is rushed through with little scrutiny,” Landry said, adding that lawmakers also “pass a lot of laws … we know are likely to be challenged.”
“It seems like the Legislature as a whole brush it off and say ‘it’s up to the attorney general,'” she said. “I believe we have a duty to look into them further, especially when it’s not pressing.”