OnlyIDs? Why North Carolina’s New Pornography Identification Law May Be a Permissible Restriction on Speech.

By Caleb Flowers, Staff Writer, Volume 22

The Problem with Porn: Why make an Age Verification Law?

Many young people, especially boys, have traded in the “good articles” in their father’s old Playboy Magazines for carefully curated and increasingly intense PornHub recommendation pages. Pornography is more pervasive than ever. A recent study showed that more than half of high school students have been exposed to porn, with the average of first exposure to pornography at only 11. Studies have found plenty of negative effects for long-term porn usage and porn addiction, including erectile dysfunction, decreased self-esteem, and even higher rates of committing crimes like cyber-stalking and sexual assault. These troubling trends have not gone unnoticed. Nine states, including North Carolina, have passed legislation to limit the chance that minors are exposed to the commercial porn industry. In North Carolina, the Pornography Age Verification Enforcement Act (PAVE act) has completely driven the largest online porn website, Pornhub, out of the state. In response, some First Amendment advocates have encouraged Pornhub’s parent company, Aylo, to take legal action on privacy and First Amendment grounds. The Supreme Court hasn’t assessed a pornography age verification law in over 20 years. In 2002, the Court decided against an age verification passed by Congress, arguing that the law was overly broad. However, the internet has developed more than the court could have imagined in the last two decades, and North Carolina’s PAVE act is far more specific than the congressional act. It’s time for the court system to back North Carolina’s Pave Act.

How the Court has previous dealt with pornography

The Supreme Court has long since settled that pornography, at least categorically, is protected speech unless it falls inside the incredibly narrow category of obscenity. That means it can’t be outright banned unless it meets the highest judicial standard: strict scrutiny. To pass strict scrutiny, a law would need to serve a compelling interest, and the application law needs to be narrowly tailored to that interest. However, there are some permissible limits on pornography, even if it is Speech. The Court took for granted that some laws restricting pornography met both prongs of strict scrutiny, like protecting minors from pornographic magazines.  The Supreme Court has not yet applied that same logic to the internet. In Reno v. ACLU, the court decided that a Congressional age verification law, the 1996 Communications Decency Act (CDA), was overly broad and thus violated the First Amendment. While the Court struct down the CDA, they did not completely close the door on all internet pornography age verification law. The Court conceded that protecting children from pornography was compelling state interest, meaning that the interest was necessary. However, a permissible law to protect children from pornography needs to be more narrowly tailored, meaning that the law needs to be the least restrictive means to achieve that purpose, than the CDA.

Why the Court Should Back the Pave Act

So, does Reno v. ACLU stop the North Carolina PAVE act in its tracks? The short is no.

There are some major differences between the CDA and the PAVE act, and the internet has changed immensely. Because of the Pave Act’s narrower restrictions, how the PAVE act is enforced, and the natural development of the internet, the PAVE act is narrowly tailored and should stand.

The restrictions in the PAVE act are more targeted than the CDA’s restrictions. The CDA included both “obscene” and “indecent” materials. The Reno Court was clear that the only impermissible portion of the CDA was the “indecent” restriction. The Court had already settled that obscene material doesn’t have the same protections. However, indecent isn’t just another word for obscene; it is a much broader term that contained any kind of lewd content, regardless of whether it met the high standard of obscene.  The PAVE act includes only images that are “harmful to children.” The definition of harmful to children, as stated in the North Carolina Criminal Code, lines up identically with the Supreme Court’s definition of “obscenity,” so it isn’t overly board like the CDA.

It’s not just the types of restrictions; the PAVE Act also applies to a smaller selection of the internet. The Reno Court found that the CDA applied to too many areas on the internet. Justice Stevens specifically pointed to chat rooms, which would be the equivalent of WhatsApp or GroupMe today, which would be virtually impossible to monitor. The PAVE Act on applies to only commercial websites, like Pornhub. It doesn’t apply to websites like search engines and news organizations. For these websites, the concerns of administrability melt away. Commercial porn cites already monitor internet traffic and what material is posted on their cites in a way that chatrooms can’t.

The PAVE Act fixes another one a major issue in Reno: enforcement. In Reno, the court stated that the CDA took away a parent’s choice to expose their children to porn. The PAVE Act gives them that option. The law gives parents have a private right of action. That means the ball is in the parent’s court. If a parent wants their child to have access to porn, they can choose not to bring suit. Companies can only be sued by a parent, so the state is not ultimately interfering with that parent’s right to choose what kinds of material they expose their expose their children.

Another enforcement concern addressed in Reno was the risk of companies keeping identifying information of visitors to their websites. The PAVE act solves this by forbidding companies from keeping records on patrons. The act also gives a private right of action to any person whose information is improperly handled by the commercial pornography vendors. This is far more protective the CDA.

There are major differences between the internet of the late 1990s and the internet of today. The district court in Reno took for granted that parental protection software could, at best, check for explicit words. That’s not the case anymore. Accountability like “Covenant Eyes” allow for far more extensive image monitoring than Justice Stevens could have imagined. Even search engines like google can sort whether images are sexually explicit or not. Although the process has taken decades, Congress and the private sector have increased their ability to legislate and monitor the internet.

In many ways, the PAVE Act succeeds where the CDA fails. The PAVE act is far more targeted in its enforcement and applicability. The act also comes into effect during a time where the internet has been given room to evolve. Even 20 years ago, Congress and the Court was aware of the potential dangers of child exposure to pornography. The internet has exacerbated those dangers to frightening new heights for alarmingly large part of the population. Because the PAVE Act is far more protective of Free Speech rights than its ancestor, the CDA, and because the ever more apparent dangers of childhood exposure pornography, the court system should uphold the PAVE Act.