Porn Age-Check Ruling Staves Off Free Speech Challenge, for Now

As the US Supreme Court considers a free speech challenge to Texas’ adult-content age-verification law, lower federal courts are focusing on who has standing to contest laws aimed at limiting youth access to online pornography.

The US Court of Appeals for the Tenth Circuit this month affirmed a lower court’s finding that the adult content trade association Free Speech Coalition Inc. can’t sue Utah officials to block the state’s age-check law because the statute exclusively relies on a private right of action for enforcement. The decision came a year after a federal judge dismissed some claims in the group’s similar challenge of Louisiana’s age-check law, saying the defendants—a trio of state officials—weren’t empowered to enforce the act.

Central to this new round of mounting litigation are the age-check laws’ private rights of action. Utah is one of at least 18 states that’s enacted legislation calling on residents to enforce age-verification requirements, according to Free Speech Coalition Action Center. Eight states also explicitly add state attorneys general power as an enforcement mechanism to litigate civil—and, in Tennessee, criminal—violations. Louisiana amended its law to join those states in June 2023.

These laws targeting websites like Pornhub are already being litigated in at least five courts, while the Supreme Court considers a challenge to Texas’ law. In the meantime, both plaintiffs and defendants view private rights of action as potentially inhibiting their goals, whether that be to effectively challenge laws or enforce them.

“Provisions that you wouldn’t potentially think to pay as much attention to—like a private right of action—can have a much bigger impact than you might think,” said Ash Johnson, senior policy manager at the Information Technology and Innovation Foundation.

Citizens’ Enforcement

Utah’s law requires websites that publish or distribute pornography, or content materially “harmful to minors,” to verify each user’s age before permitting access to their site. Until May 2023, only Louisiana had a similar law, and its private right of action served as a model for Utah’s enforcement language. Now, 17 other states have age-check laws for adult content that have either already taken effect or will take effect next year.

“There’s no question that the private right of action is a more narrow and focused remedy and legislative approach,” said Peter Gentala, senior legal counsel for the National Center on Sexual Exploitation Law Center. “And while we support it and think it’s something that’s good to equip parents with, and communities, it can’t be the only focus.”

The Tenth Circuit’s decision renders the Utah law effectively unable to be challenged before it’s enforced, according to Vera Eidelman, staff attorney at the American Civil Liberties Union’s Speech, Privacy, and Technology Project. Because there is no public official to sue, private enforcement presents a challenge to groups like Free Speech Coalition bringing constitutional critiques to court before companies are actually sued by individuals.

Private rights of action aren’t new, but there has been a recent increase in their usage in consumer protection and privacy regulation, said Cheryl Saniuk-Heinig, a research and insights analyst for the International Association of Privacy Professionals. Some people see consumer harms as “pretty intimate” to individuals, she said, making those directly harmed by companies’ noncompliance best equipped to pursue recourse.

Other proponents of the laws say attorneys general are essential to achieving the laws’ goals.

Attorneys general’s investigations are crucial to more effectively enforce laws that protect children online, according to Eric Faler, policy analyst at the National Decency Coalition.

He pointed to Texas Attorney General Ken Paxton’s enforcement, which he called “the most effective” in keeping companies compliant. Paxton has taken several adult content companies to court, including Aylo Global Entertainment, which runs Pornhub.

“If the government can’t enforce these laws and it’s down to just a whack-a-mole with individual plaintiffs, it’s not going to have the effect,” Faler said. “These are giant companies. They’re not worried about a $5,000 damages case—they’re worried about a $1.3 million compliance case.”

Stifled Challenges

The Tenth Circuit panel didn’t dive into the merits of the free speech arguments against Utah’s age-check law, but simply concluded Utah’s attorney general and commissioner of the state’s public safety department lacked “sufficient nexus,” said Jeewon Kim Serrato, who leads Pillsbury Winthrop Shaw Pittman LLP’s Consumer Protection team.

The lack of a viable pre-enforcement constitutional challenge against Utah’s law “is chilling” for adult entertainment companies, said Eidelman of the ACLU. “That means that they have to worry about the possibility of any number of private suits if they don’t follow this law that they view—I view—as unconstitutional.”

Utah’s private right of action, and laws like it, insulate legislation that lawmakers know presents constitutional concerns, said Webb Daniel Friedlander LLP partner Jeffrey Sandman, who represents Free Speech Coalition and the other plaintiffs in the case.

That is “governance at its most cynical,” Sandman said in a statement.

“It’s a tell,” said Eric Goldman, a professor of law at Santa Clara University School of Law. “It’s a red flag that this law is not only a censorship law, but that the legislature is hoping to get away with it.”

Key to the private action legal battle is the complexity of enforcement when the laws themselves are vague, said Mike Stabile, Free Speech Coalition’s director of public policy. Utah’s law, for instance, applies to companies for which 33% of the total material on their websites constitutes “material harmful to minors.”

“Is that the volume of data that is ‘adult’? Is that the number of posts?” he said. “We don’t know.”