MONTGOMERY, Ala. — Porn filtering legislation is an ongoing trend among conservative state lawmakers across the United States. The latest proposal comes from a Republican member of the Alabama House of Representatives. Rep. Chris Sells (R-Greenville) announced that he submitted House Bill 43 for consideration before the Republican-dominated state legislature in an editorial published by AL.com.
“I recently filed a bill in the Alabama House of Representatives (HB 43) to require digital device manufacturers such as Apple to make pornography filters default to “on” when new devices are activated,” Sells wrote. “These content filters are already installed on devices, but the filters are “off” unless multiple manual steps are taken—and that’s if a parent even knows the filter is available on the device.”
The legislation introduced by Sells is similar to several proposals filed in legislatures over the years. Prominently, the Utah state legislature passed a similar bill that mandates that porn filtering software be preinstalled on all internet-enabled mobile phones and tablets sold within the state’s borders.
YNOT previously reported that the Utah bill, House Bill 72, was signed into law by Utah Governor Spencer Cox (R) and would only enter force if other states pass similar legislation. The American Civil Liberties Union (ACLU) of Utah said that the bill at the time “infringes upon the general public’s First Amendment rights to freely access the internet.” House Bill 43 is virtually the same and will likely face challenges.
The language of the Sells bill is broad and could violate constitutional precedents. According to a draft filing of House Bill 43, the potential law would define preinstalled software on mobile devices as being “capable of preventing the device from accessing or displaying material that is harmful to minors through the internet or any applications owned and controlled by the manufacturer and installed on the device.”
The term “harmful to minors” is defined in the bill as “any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it: a. Taken as a whole, appeals to the prurient interest of minors; b. is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and c. taken as a whole, does not have serious value for minors, which includes only serious literary, artistic, political, or scientific value for minors.”
The United States Supreme Court struck down the Communications Decency Act (CDA) of 1996, which banned the so-called practice of making indecent materials available to minors. Section 230 of the CDA, however, was the surviving element of that law that implemented the benchmark third-party liability shield for interactive computer services, including porn and other adult platforms.
However, child protection filters aren’t as effective as their sellers suggest. For example, Forbes reported on a study by Top10VPN, which found that the top parental control apps available on Google Play, at least 92%, were wrongly blocking legitimate LGBTQ and sex education sites as so-called “adult content.” In the same study, the filters failed to block sites like OnlyFans, Chatroulette, and 4Chan.
Far-right extremist content was also not blocked. Mandating filters via policies like Utah’s House Bill 72 and Rep. Sells’ House Bill 43 proposal could usher in an extreme case of unintended consequences. These filters can easily catch and block innocuous materials, and requiring devices to have these preinstalled apps upon purchase may violate the First Amendment. It’s also unlikely to fly in federal and state courts.
