NASHVILLE, Tenn. (AP) — An appeals panel has ruled that Tennessee can begin enforcing a law requiring pornographic websites to verify the age of their visitors, as the First Amendment debate rages before the U.S. Supreme Court this week hearings are being held on a similar Texas law.
On Monday, the panel of the 6th U.S. Circuit Court of Appeals ruled 3-0 that Tennessee’s law can take effect while litigation continues. A district judge had largely temporarily blocked the law’s entry into force on Jan. 1, citing free speech protections for adults and saying the law was ineffective in protecting minors from harmful content.
The Free Speech Coalition, an adult entertainment trade group, sued over the law in Tennessee and a half-dozen other states, including Texas. According to the coalition, about 19 states have passed similar laws.
The 6th Circuit panel wrote that the district judge failed to show that potentially unconstitutional aspects of Tennessee law outweighed its constitutional benefits. It described the law’s goals as “protecting children from the devastating effects of easy access to on-demand pornography.”
Other appeals courts have overturned lower court decisions that had blocked similar laws in Texas and Indiana, the panel wrote. The Supreme Court declined to stop the Texas law in April, while a legal challenge by the Free Speech Coalition is ongoing with oral arguments on Wednesday.
“We see no reason to leave Tennessee’s law on hold while Texas and Indiana could enforce their rights (against at least one of the same plaintiffs), especially when the Supreme Court will soon provide guidance on the standards of review we should apply,” it said in 6 The district resolution states.
Following the decision, the website Pornhub began blocking access in Tennessee. According to parent company Aylo, the site had already blocked access in 16 other states due to verification requirements that it described as “ineffective, arbitrary and dangerous” and not properly enforced. The company advocates age verification on individual devices.
Tennessee law requires porn websites to verify that their visitors are at least 18 years senior, which carries felony penalties and possible civil liability for violating the sites. They could match a photo to a person’s ID or apply certain “public or private transaction data” to prove a person’s age. Website managers would not be able to store personal data and would have to keep anonymized data.
Age verification would be required if a third of a website’s content is considered harmful to minors by government standards.
The Free Speech Coalition argued the law was ineffective and unconstitutional and forced people to submit sensitive information.
Meanwhile, Kansas Attorney General Kris Kobach sued Seattle-based SARJ LLC on Monday, claiming the company was violating Kansas law by operating 13 pornographic websites without “age-restriction technology” to ensure visitors were at least 18 years senior be senior.
The consumer protection lawsuit seeks potentially millions of dollars in damages – up to $10,000 for each time someone in Kansas accesses one of the websites and up to $10,000 for each day the company fails to comply with the law holds.
In blocking Tennessee’s law, U.S. District Judge Sheryl Lipman in Memphis wrote that Tennessee’s requirement would not prevent minors from accessing adult websites through VPNs, or virtual private networks that mask a user’s location. The law also wouldn’t stop them from viewing pornographic material in obscure corners of the Internet – or on social media sites, which would likely be protected by the one-third content threshold, Lipman said.
The judge said the law’s impact could be too broad, potentially affecting other plaintiffs, such as an online education platform focused on sexual wellness. She also pointed out that Tennessee’s definition of “mature content” includes text.
Lipman is an appointee of former President Barack Obama. Former President George W. Bush appointed two of the 6th Circuit judges. President-elect Donald Trump appointed the third.
Tennessee Attorney General Jonathan Skrmetti, who welcomed the ruling, noted that the age verification requirement passed overwhelmingly unanimously in the Republican Legislature.
“As the appeals court noted, this law is intended to curb the flow of toxic content to children and to continue to make adult websites accessible only to adults,” Skrmetti said in an emailed statement.
Similar laws went into effect in Florida and South Carolina on January 1st. Another age verification law goes into effect in Georgia in July.
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Associated Press reporter John Hanna contributed from Topeka, Kansas.
