Analysis: Calif.'s Amended AB 3080 Still Very Broad

SACRAMENTO, Calif.—Lawmakers in the California State Assembly have amended a proposed age verification measure to narrow the requirements' reach so that opponents would find the measure more palatable. Assembly Bill (AB) 3080 was proposed by Asm. Juan Alanis, a conservative Republican from Modesto.

AB 3080 was originally a model bill drafted by the far-right Christian nationalist-leaning Center for Renewing America that defined material "harmful to minors" as content that is both "obscene" and "indecent." This broad definition raised concerns among civil society organizations surrounding its First Amendment implications, as well as those of its age verification requirements, which they argue violate a user's free speech rights on the internet. 

However, the bill got a complete makeover, making the age verification measure acceptable for Democrats and Republicans, who voted unanimously to advance it during a Privacy and Consumer Protection Committee hearing two weeks ago. According to the amended bill text, Asm. Alanis now wishes to add the requirements called for in the bill as an amendment to the already-enacted Parent’s Accountability and Child Protection Act (PACPA).

PACPA was enacted in 2019 by California Gov. Gavin Newsom. Referred to as AB 2511 at the time, the law made it a requirement for businesses operating in California that sell certain age-restricted products to take "reasonable steps" to prevent the illegal purchase of such products or services by ensuring the purchaser of the product or service is of legal purchase age.

Products and services covered by PACPA include tobacco and alternative nicotine products, firearms, some dietary supplements, tattoos, body piercings and spray tanning.

AB 3080 would now amend PACPA to cover pornography websites and other adult entertainment platforms. This would "require the sites as defined, to engage in reasonable age verification to ensure intending users are of legal age before accessing the website’s content."

The Assembly's unanimous vote advanced the amended AB 3080 for a markup before the Judiciary Committee, where the constitutionality concerns raised by bill opponents will be considered. Though the bill was amended reportedly with opponents' concerns in mind, there are still concerns that it is overly broad in its definition of "sexually explicitly material."

The amended bill features the following language: 

(d) (1) Products that are illegal to make available to minors include pornographic internet websites.
(2) (A) “Pornographic internet website” means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website.
(B) “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
This language is found under the new provision that would make pornographic internet websites a covered business under PACPA. Its use of the term "sexually explicit content" in identifying what constitutes such a website in effect creates a new definition of what is legally considered pornography using elements of the longstanding Miller test for obscenity.
As a reminder, the Miller test is the three-pronged standard used by courts across the United States to determine if content is criminally obscene (e.g., child sexual abuse material) and is, therefore, barred from First Amendment protections. It defines that content is only obscene if it, "taken as a whole, lacks serious literary, artistic, political, or scientific value."
As adult industry attorney Corey Silverstein explained to AVN, AB 3080's definition of "sexually explicit content" will make regulatory compliance more complicated. 
"They're taking [the Miller test] and making it even more stringent," Silverstein said. "This isn't a question of whether the content is obscene or not; it's a question of the content. It is 'sexually explicit.' [Lawmakers] are creating for themselves yet another basis for attack against the adult entertainment industry.
"It's funny that supposedly the most liberal state in the country is shitting all over the First Amendment by trying to redefine what adult content is," he added. "It's just amusing that the politicians over there are talking out both sides of their mouths."
Silverstein then added that he doesn't expect AB 3080 to become law, specifically referring to Gov. Newsom's likely opposition to it. Silverstein compares his expectation for Gov. Newsom to what happened in Arizona with Gov. Katie Hobbs vetoing an age verification proposal on the grounds that it violated the First Amendment and ran up against longstanding case law.
Adult industry trade group the Free Speech Coalition is urging California-based adult industry professionals to contact their elected officials in the legislature to kill AB 3080.