Millions blocked from porn sites as free speech, child safety debate rages across US

Corrections and clarifications: An earlier version of this story misstated when Texas passed HB 1181, an age-verification law. It passed in June 2023.

A high-stakes battle over pornography, child safety and free speech is heating up across the nation, with more than a half-dozen states passing age-verification laws aimed at halting minors from accessing Pornhub and other adult web sites.

Texas is among seven states to pass some form of the controversial legislation, which effectively blocks millions of adult video enthusiasts from entering Pornhub’s site unless they can prove they are at least 18 years old.

Attorneys and advocates for porn sites argue that the laws are not just prohibiting minors, but adults, too. Pornhub says it had no choice but "to completely disable access to our website in Texas" in order to reduce the risk of hefty fines and penalties.

In addition to Texas, Pornhub has reluctantly blocked site access for people in other states with age-verification laws, including Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah and Virginia.

“We are fighting not only for the rights of our members and the larger adult entertainment community, but for the right of all Americans to access constitutionally protected expression in the privacy of their own home," said Alison Boden, Executive Director of Free Speech Coalition, a national advocacy organization for the First Amendment rights of adult businesses. The group filed a lawsuit in federal court last year over what it called an "anti-porn ban" by Utah lawmakers.

The HB 1181 law passed in June 2023 in Texas requires companies that offer “sexual material harmful to minors” to verify that those who visit their website are 18 or older, either by proof of government-issued identification or another system that uses public and private data.

Texas Attorney General Ken Paxton, a Republican, sued Pornhub’s parent company, Aylo, in February to force them to comply with the HB 1181 law. Paxton also threatened the company with millions of dollars in civil penalties – including up to $10,000 per day for noncompliance, and $250,000 “if a child is exposed to pornographic content due to not properly verifying a user’s age.”

“Texas has a right to protect its children from the detrimental effects of pornographic content,” Paxton said in announcing the suit. “I look forward to holding any company accountable that violates our age verification laws intended to prevent minors from being exposed to harmful, obscene material on the internet.”

The Texas case illuminates similar restrictions on pornography websites across the US. And it shines a light on the debate over the balance between keeping children safe online and free speech protections guaranteed by the First Amendment.

New message on Pornhub in some states

When Texans go to Pornhub, they find a message that says the law impinges "on the rights of adults to access protected speech . . . Not only will it not actually protect children, but it will also inevitably reduce content creators' ability to post and distribute legal adult content and directly impact their ability to share the artistic messages they want to convey."

Pornhub says the "only effective solution" to protect children and adults is to verify the users' age on their devices and deny or allow them access to age-restricted content and websites based on that verification, according to the message on the site.

“Until the real solution is offered, we have made the difficult decision to completely disable access to our website in Texas,” the adult site's message read.

Paxton's office declared victory when the U.S. Court of Appeals for the Fifth Circuit determined the Texas law does not violate the First Amendment.

“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the court said. “Therefore, the age-verification requirement does not violate the First Amendment.”

Identification card required for adult access

More than a handful of states across the US have passed age verification legislation in the last year. Many of them require the companies to obtain an identification card from users who want to access adult sexual content.

Louisiana was the first state to pass an age-verification requirement law.

"So far, six other states have copied this (Louisiana) bill but minor changes have been made to the text, which can have big implications for systems designed to achieve compliance," reads a post from the Age Verification Providers Association. The organization is a not-for-profit global trade body representing 26 organizations who provide "age assurance solutions."

Child safety debate rages across the US

The laws - and pushback from the porn industry - cast light on the debate over free speech and child safety.

The Free Speech Coalition sued Texas over the latest law, arguing infringement on freedom of speech.

"We can all work to keep minors from accessing adult content, but allowing the government to dictate what information adults can see is unconscionable and unconstitutional," according to Boden.

A statement from the coalition following the recent court decision allowing Texas to uphold the law reads: "Our battle, of course, is just beginning. Unfortunately, we’ve already seen how this designation has been weaponized to censor and ban LGBTQ+ literature, reproductive rights resources, sex education, art, and healthcare. Sexual expression, online and off, has been and continues to be the canary in the coal mine of free speech.

Child safety advocates and state legislators where laws have passed argue that protections are needed to ensure kids are safe online.

A poll from RMG Research shows a majority of Americans support a federal law requiring adult websites that contain sexual content to have some kind of age-verification requirements.

The battles in states across the country could foreshadow what's to come in other states looking at age verification laws.

"After a wave of legislation focused on child online safety swept through state legislatures over the past two years, legal challenges against the new laws are gaining traction in federal courts," reads an article from Tech Policy Press. "But rather than signaling a change in the tide, the lawsuits may ultimately spur a new round of bills that address flaws in those passed in the first wave."

Indiana age-verification bill could be next

Similar legislation in Indiana could become law and possibly lead to Pornhub also disabling access to that state, the difference is, the company may also be held legally liable by minors' parents.

Senate Bill 17 is on its way to Indiana Gov. Gov. Eric Holcomb. and it would, like HB 1181, require "adult-oriented websites" to mandate the verification of its users to make sure they are 18 or older.

According to Indiana law, harmful materials for minors can include representations of nudity, sexual conduct and sadomasochistic abuse.

The Indiana bill differs from the Texas law because it allows parents to sue if their children access a pornography site that is "knowingly or intentionally" not utilizing age-verification measures. The minor's parent or guardian can receive up to $5,000 in damages if a court rules in their favor. The attorney general can also sue pornography websites that don't abide by the law, but the civil penalty would be up to $250,000.

Pornhub also disabled access in 2023 in Utah when the state passed its age verification law.

Contributing: Brittany Carloni for the Indianapolis Star, David DeMille for the St. George Spectrum & Daily News

This article originally appeared on USA TODAY: Pornhub says states are stripping Americans' right to free speech