Authors worry that Supreme Court decision means sexually explicit material will require age verification online
In Texas, the Freedom of Speech League (FSC) filed a lawsuit challenging a bill passed by the state legislature that would require age verification on websites with more than one-third of their content harmful to minors. The two-year trial was entangled all the way to the Supreme Court, which decided not to block the state law, but author Michael Ellsberg expressed concern that this decision would mean that age verification would be required not only for pornographic content on the Internet, but even for texts that contain sexual scenes.
The Supreme Court's Ruling Practically Wipes Out Free Speech for Sex Writing Online
In an era when a wide range of generations can easily access online content on smartphones, one of the challenges is how to protect minors from harmful sexual content. In the United States, 23 states have enacted laws restricting 'websites containing content harmful to minors' between 2023 and 2024. Texas is one of them, and in 2023, a bill was passed in Congress requiring age verification for 'websites with more than one-third of the content harmful to minors.'
In response, Pornhub will block access from Texas in 2024.
Pornhub bans access from Texas - GIGAZINE
The adult content trade group FSC fought the legislation and filed a lawsuit in Texas seeking to have the bill struck down.
The federal district court ruled in favor of the FSC and declared the bill invalid, but Judge Jerry Smith of the Fifth Circuit Court of Appeals ruled that the age verification requirement was within the state's legitimate purpose of preventing minors from accessing pornography. He overturned the district court's decision and upheld the age verification requirement as stipulated in the law. At that time, Judge Patrick Higginpossum of the appeals court dissented, saying that the bill 'violates the protected speech of adults and has a repressive effect.'
Ultimately, the Supreme Court gave up trying to block the Texas law.
But the ruling means that personal websites that don't ask users to verify their age can be liable for damages if they contain just one paragraph of 'sexually explicit' material, Ellsberg said.
For example, if prosecutors in Tennessee or South Dakota, where age verification laws are already in place, determine that even a single line of 'sexually explicit' text on Ellsberg's site could harm children in their states, they could even prosecute author Ellsberg for failing to implement ID checks on his site.
In practice, Ellsberg said he doesn't think it's likely that a statewide lawsuit will be brought, but he points out that in theory, the Supreme Court ruling means that the First Amendment's freedom of expression and speech doesn't apply to online creative works and content that contain sexual content.
Ellsberg also stated that he has no plans to require age verification on the site, and commented to conservative parents, 'If you don't want your children to read my writing or see my content, then please install a content blocker on your child's device and add my site to the list. When your children turn 18, it will be their choice whether or not to allow my writing to corrupt their minds.'
He also said to prosecutors, judges and lawyers who may come after him in the future, 'Come and get me. I will turn every word you utter into a laughing stock on the sites you attack me on, and you will forever be comically remembered as a hypocrite.'
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