Republican crusade against online porn raises First Amendment questions

Republican lawmakers have proposed a series of bills this year aimed at trying to regulate online pornographic content that critics say would run afoul of the constitutional free speech protections. 

Republican lawmakers have tried to pass new laws in recent years aimed at requiring websites that host adult content to require photo identification for users to access the sites, but those bills have failed to pass as lawmakers questioned their constitutionality

But things are different now: Several states have enacted legislation of their own that requires operators of adult-oriented websites to confirm the age of users by using photo identification. As a result, many pornographic websites have chosen to block all access in those states, citing the challenges they say the laws create. 

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Lawsuits challenging the laws enacted in some of these states are also still ongoing. 

Senate Bill 1125 by Flagstaff Republican Sen. Wendy Rogers is a retread of a measure she sponsored last year, which critics said was a stripped-down version of a similar law enacted by Louisiana. 

For instance, the Louisiana law includes thresholds for the amount of pornographic material on a site needed to trigger the identification requirement. In the previous version of the Arizona bill, the threshold was “a substantial portion,” an undefined term that critics said could be interpreted as any amount of nudity or sexual content. 

This year’s iteration defines that term as meaning any site with more than “thirty-three and one-third percent of total material” that is explicit. 

Mike Stabile, director of public affairs for the Free Speech Coalition, a nonprofit that represents the pornography industry, told the Senate Committee on Technology, Transportation and Missing Children on Monday that the states enacting similar laws have found that users are not complying with the changes. Additionally, Stabile voiced concerns about the access governments would have to the data collected. 

Under Rogers’ proposal, parents could submit their Internet Protocol address, a unique address that identifies a device on the internet, to their internet service provider to have adult websites blocked. Any site that allows a minor to access explicit content would be liable for civil liability. 

Stabile noted that search engines and social media sites would not fall under the proposed law, even as sites like Facebook have been getting flooded with people livestreaming pornographic material

The bill passed out of committee along party lines, with Republicans voting in favor and Democrats in opposition. 

Stabile voiced similar concerns about two other pieces of legislation that were heard on Wednesday by a House panel, both of which aimed to prevent minors from accessing adult content online. 

House Speaker Ben Toma, a Peoria Republican, is backing House Bill 2661 to require manufacturers of phones and tablets to have filters enabled at activation that verify a person’s date of birth. And House Bill 2586, sponsored by Rep. Tim Dunn, R-Yuma, would require sites that host adult content to verify a user’s age by using a commercial or governmental database. 

Both bills would open up companies to civil liability if a minor is exposed to sexually explicit content.

“Most (website operators) who have tried to comply with this legislation in other states have found that 80% of consumers will not comply with this,” Stabile told the House Judiciary Committee, adding that the bills have First Amendment concerns, as well. 

In states that have passed similar legislation, the use of VPNs, or virtual private networks, saw increased use and search engine traffic. VPNs allow a user to mask their IP address so they appear to be accessing the internet from a different state or different country. 

Rep. Analise Ortiz, D-Phoenix, said that she recalled using a VPN when she was in middle school to bypass her school computer blocking access to MySpace. A large number of children are using VPNs to access explicit and violent content, according to reports

However, the bills did not just face opposition from Democratic members. 

Rep. Alexander Kolodin, R-Scottsdale, said he was worried that Toma’s bill allowed for data collection. 

“My concern is that you seem to be mandating data collection,” Kolodin said to Peter Gentala, senior policy advisor to the National Center on Sexual Exploitation. 

The National Center on Sexual Exploitation is the latest name of an anti-pornography organization formed in 1962 and initially named Operation Yorkville, and was known as Morality in Media from the late 1960s until 2015. Among other things, it has tried to ban erotic fiction, attacked the works of Monty Python and gotten Cosmopolitan magazine removed from Walmart shelves. The group has also previously attempted to make spurious connections between mass shootings and gay marriage.  

The group, along with other far-right anti-pornography and anti-sex education groups, spoke in favor of the bills. 

Gentala and other backers of laws curtailing access to pornography said the measures would pass constitutional muster, while Stabile and the ACLU argued that the bills would run afoul of existing case law around the use of filters and minors. 

In the U.S. Supreme Court case Ashcroft v. Free Speech Coalition, the court found that a federal law aimed at protecting minors online went too far and interfered with the First Amendment rights of adults. Specifically, the courts cited the availability of internet filters as a less restrictive means of dealing with the situation. 

Previous versions of similar laws have also already been struck down by the courts multiple times. In Louisiana, a similar law was barred from being enforced in 2015 after a lawsuit was brought by book sellers. Arizona also had a similar law in 2000 signed by then-Gov. Jane Hull that the courts later deemed unconstitutional.  

“It seems to me the solution to all of those issues is to make sure the filter is set to ‘on’ during activation,” Kolodin said about Toma’s bill. Adding that he anticipates that Toma and tech companies will work together to amend the bill, Kolodin voted present on the bill so it didn’t die in committee. 

Jose Torres, deputy executive director for the bipartisan group TechNet, said his organization opposed Toma’s bill and was concerned that device manufacturers would be unable to enact the changes lawmakers want. 

“This bill is technologically infeasible to comply with,” Torres said, adding that the vast jurisdictions that tech companies operate in, combined with the likelihood they would not be able to stop “100%” of the explicit content, would open them up to civil liabilities. 

Steven Greenhunt, Western director for the conservative think-tank R Street, said that the bill would give parents a “false sense of security.” 

“There are quite a few tools available to parents,” Greenhunt said, adding that it isn’t the government’s role to be involved in parental choices. He called the bill a “nanny state” measure. 

Toma’s bill passed out of committee with Democratic members voting no and Kolodin voting present. It will next head to the House floor for consideration by the full body. 

Dunn’s measure, which mirrors the law passed in Louisiana, faced similar scrutiny. 

“Are you at all concerned that we might be mandating that the government keep a ‘porn viewers’ database?” Kolodin asked Kathleen Winn, one of the bill’s supporters. 

Winn said she doesn’t like the government collecting any sort of data, but supported doing so in this case because ease with which minors can find pornographic material online is “dangerous” to children because it is “hypersexualizing” them. 

“We need to do something, but do we need to do this?” Kolodin said when voting present on Dunn’s bill. “So, any bill that asks for me to authorize the government to keep a list that it can use against its political enemies, I have a bit of a problem with it.” 

Dunn’s measure passed out of the committee with Democratic members voting no and Rep. David Marshall, R-Snowflake, and Kolodin voting present. 

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