During my second week as the new executive director of the ACLU of Indiana, I found myself in front of the Senate Judiciary Committee testifying against Senate Bill 17, an online age verification bill supporters claim is aimed at preventing minors from accessing pornography.
You can imagine how popular that made me with the other parents of teenagers in my neighborhood. Nonetheless, the position was the right one to take to protect the constitutional rights of Hoosier adults.
The bill passed the legislature, was signed by the governor, and was scheduled to take effect this week. Fast forward to late June, when Pornhub, the most visited pornography website in the United States (and the country’s 10th most visited website of any kind) blocked access to its site in Indiana because of our state’s age-verification law. In announcing their plans, Pornhub’s parent company explained in a statement, “Any regulations that require hundreds of thousands of adult sites to collect significant amounts of highly sensitive personal information is putting user safety in jeopardy.”
Led by the Free Speech Coalition, Pornhub, other websites, and individual performers filed suit against the state. Late last week, US District Court Judge Richard Young put Senate Enrolled Act 17 on hold because he found that it was “likely facially unconstitutional under the First Amendment. In other words, it is likely the law is unconstitutional in toto.”
The ACLU of Indiana strongly agrees with this decision. The First Amendment doesn’t just protect a speaker, but also those who want to hear what someone is saying. And in the case of constitutional protections, “speech” is interpreted broadly to include video productions, including pornography. Protecting free speech is not a theoretical exercise. Today, local and state government officials in Indiana are threatening free speech in our libraries, schools, universities, public spaces and online.
Regardless of how you personally feel about pornography, you should be concerned when the government makes it harder for adults to access it. And a government that is allowed to infringe on free speech because the subject matter is sexual in nature will expand that power to infringe on free speech because it contains ideas that they think are “harmful.”
The state isn’t prohibited from taking any action to help parents keep their children safe. They are just required to do so in a way that accomplishes the state’s goal while creating the least burden on adults’ constitutional rights. For instance, they can fund and launch a public education campaign to help parents filter pornography online and can make filtering software more available. Neither of which will affect access for adults.
And you don’t have to take my word for it that age verification will negatively affect access for adults. The Indiana Catholic Conference testified in front of the House Judiciary Committee that they supported the legislation, in part, because age verification would change “an adult’s interaction with [a pornography] site.” They said that age verification would lead some adults to leave a particular site instead of going through the process.
Even though Sen. Mike Bohacek, author of SB 17, testified that the motivation for the bill was to protect minors, supporters of the bill who are morally opposed to pornography see a larger benefit of the law. This is the exact kind of government overreach that courts have said violates the First Amendment.
When the ACLU of Indiana testified on age verification during session, we told Statehouse leaders that there are effective alternatives that are constitutionally permissible. We also told them we’d work with them on these alternatives. We remain hopeful that they’ll take us up on it.
Chris Daley is executive director of the American Civil Liberties Union of Indiana. This commentary previously appeared at indianacapitalchronicle.com. Send comments to [email protected].
