CANOGA PARK, Calif. — According to an alert posted by the Free Speech Coalition on Tuesday, a law firm in Kansas is seeking potential plaintiffs in the state to file suit against adult companies, under Kansas’ recently passed age-verification statute.
“A personal injury law firm is actively courting potential plaintiffs in Kansas, using the state’s age-verification law to dangle the prospect of large financial judgments from adult companies,” FSC said in the alert. “The firm identified by FSC is openly employing church networks to reach potential plaintiffs.”
As noted in the FSC alert, in Kansas, “simple access of an adult website by a minor may be enough to bring a civil case with statutory damages — no proof of actual harm is required. Under the law, claims for statutory damages begin at $50,000. The state’s attorney general is separately empowered to bring litigation.”
“While these cynical efforts are not entirely surprising, it’s a reminder of the ongoing threat of civil litigation,” said Alison Boden, Executive Director of FSC. “These bounty hunter laws can be employed for profit. We will continue to monitor threats while challenging these unconstitutional mandates in court. We ask anyone who becomes the target of a lawsuit to contact us immediately as we have legal resources available.”
Should the Kansas law firm in question find people willing to file suit, they would be the first to do so under any of the state age-verification laws that create a right of private action, so far as I’m aware.
Of course, while the Kansas law creates such a right of private action, the outcome of a lawsuit is far from assured. As I noted in a post about state age verification laws last year, courts have thus far declined to permit pre-enforcement challenges to such laws, reasoning that the state officials have “no particular duty to enforce” the laws. While these rulings have kept the laws on the books and from being enjoined, the dismissal of the challenges on that basis also mean the court never reaches the merits of the case, leaving the question of whether the laws are constitutional unanswered.
As I wrote last year in a post about the prospect of people filing suit under age verification laws like the one in Kansas:
As noted by District Judge Ted Stewart when he dismissed the FSC’s case in Utah, “it may be of little succor to plaintiffs, but any commercial entity sued under S.B. 287 ‘may pursue state and federal constitutional arguments in his or her defense,’ they just cannot receive a pre-enforcement injunction against the two named defendants.”
Imagine yourself as someone who reads an article or press release about a new state law which enables you to sue porn sites for failing to comply with your home state’s new age-verification mandate. You might just think to yourself: “This porn site isn’t complying with the new law, my kid visited the site and was exposed to porn… it’s a slam dunk. Let’s call that one lawyer guy from the TV, immediately!”
Let’s assume you then contact an attorney, and the attorney is sufficiently ethical to provide a legitimate risk/benefit analysis, rather than simply nod while you’re speaking, have you sign a retainer agreement and take your money. That hypothetical attorney might caution you the lawsuit you’re contemplating is going to be expensive, take quite a long time to litigate, pit you against a corporate defendant with a lot more money at its disposal than you and possibly lead to a judgment you can’t collect anyway.
So… are you still eager to sue?
This is not to say there’s no threat from the prospect of a civil lawsuit being filed under these state laws, or to diminish the burden defending such a lawsuit would present to an adult business as the defendant in such an action. After all, some of what the hypothetical attorney postulated above has to say would be equally true for the defendant, particularly when it comes to the “expensive” part.
First, we’ll see if this Kansas law firm finds a willing client. And then that client can roll the dice, at significant expense, to see if the Kansas law stands up to court scrutiny.
Or, as another ‘Kansas’ might have put it: Carry on, my wayward plaintiff?
