SACRAMENTO, Calif. – Some weeks back, a friend of mine who lives in California and works in the adult industry forwarded me a link to an article about a piece of legislation brewing in the California Assembly called “The Parent’s Internet Accountability and Child Protection Act” – also known as AB 2511.
What caught my friend’s eye was the headline of the article: “California internet age verification bill clears key legislative hurdle.”
Like me, my friend has become conditioned over the years to associate phrases like “Child Protection Act” and “internet age verification bill” with attempts to regulate online porn. Is this new California bill another one of those regulatory attempts, he wondered? If so, why does it appear to be flying under the radar of the adult industry press?
In this case, the answer to the first question is no – which also provides the answer to the second question. The bill hasn’t been dissected on this site or others dedicated to adult industry news because the materials to which it seeks to constrain minors’ access isn’t porn, or any other product made by the adult industry.
In the case of AB 2511, what appears to be a very broad bill at first glance narrows when you get into the details in terms of what products it covers.
“A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser,” states the opening paragraph of the bill.
Reading too quickly, one might miss the crucially important limiting clause in that language: “as described in subdivisions (b) and (c).”
The list of age-restricted products specified in the relevant subsections includes an “aerosol container of paint that is capable of defacing property,” etching creams with the same property-damaging potential, “dangerous fireworks,” dietary supplements which contain “ephedrine group alkaloids,” cigarettes, e-cigarettes, and “less lethal” weapons, among other things.
After informing my friend that the bill at issue in the article had nothing to do with porn, online or otherwise, he hit me with a follow-up question: If the legislature can whip up a bill requiring age-verification to be conducted before selling these products to a customer over the internet, what’s to stop them from doing the same with respect to online porn?
The short answer, of course, is “the First Amendment.”
Unlike the products which will be subject to the Parent’s Internet Accountability and Child Protection Act (should it pass and be signed into law, that is), online porn is a form of speech – which makes it much trickier a thing to regulate and/or restrict access.
“There is a key distinction between restricting access to media as compared to other products and services such as gambling, tobacco, or firearms,” attorney Larry Walters, a First Amendment specialist and legal counsel to many adult industry clients, told YNOT. “Media is protected by the First Amendment, which creates constitutional concerns when the government tries to restrict access by age.”
As Walters further explained, defining what constitutes ‘adult’ or ‘pornographic’ material “is a challenge, in itself.”
“Preventing a ‘chilling effect’ on access to protected speech by adults is another problem,” Walters added. “If the California bill were to include adult materials, it would be subject to potential First Amendment challenges that would otherwise not be available. Numerous attempts to impose online age restrictions for adult materials at the state level have been struck down by the courts on constitutional grounds.”
On occasion, the government has toyed with other ideas about how age verification measures could be imposed, including through government branches other than law enforcement. But these ideas quickly run into the same constitutional stumbling blocks as their more traditional statutory counterparts, Walters said.
“There has been talk of having the FTC implement age verification,” Walters noted. “However, a previous effort to have the FTC oversee adult website age verification failed in 2005. Deferring to the FTC would not cure any constitutional defects in a law.”
As I see it, there are two lessons to take from all this.
First, not every bill aimed at imposing online age verification addresses pornography. Second, even when a bill comes along that does try to impose such requirements on the adult industry, until and unless the courts say such a statute is constitutional, it isn’t cause for much concern within the adult industry.