“Invoking the innocence of children is not…a magic incantation sufficient for legislatures to run roughshod over the First Amendment rights of adults.”
It seems that a puritanical wave is sweeping the country as state governments increasingly try to make it more difficult to access pornography from within their borders. A lawsuit is challenging one of those laws, and this week, a federal judge allowed it to continue.
Montana is one of multiple states in recent years to pass a law requiring pornographic websites to verify users’ ages. Under Senate Bill 544, any website that “knowingly and intentionally publishes or distributes material harmful to minors” must “perform reasonable age verification methods to verify the age of individuals attempting to access the material,” so long as the site in question “contains a substantial portion of the material.”
The statute defines “material harmful to minors” as, essentially, the depiction of any sexual acts, covering everything from straightforward pornography all the way up to and including “bestiality.” It further notes that “reasonable age verification methods” can take the form of “a digitized identification card” or some other system that either checks a user’s “government-issued identification” or otherwise “relies on public or private transactional data.”
While perhaps well-intended, the law is a civil liberties nightmare: First of all, as a general rule, pornography is free speech protected by the First Amendment. And as Elizabeth Nolan Brown wrote in the April 2024 issue of Reason, the sort of age verification law that some states now favor “creates a record, permanently attaching real identities to online activity that many people would prefer stay private,” and “even the best verification methods would leave people vulnerable to hackers and snoops.”
Yet another example of the government attempting to assume a parental function.