COLUMBIA, S.C./NASHVILLE, Tenn.—Age verification is now the law of the land in South Carolina and Tennessee. The two states are the latest to adopt AV laws, including a felony charge attached to violators of the Tennessee bill.
South Carolina Gov. Henry McMaster, a conservative Republican, signed measure H. 3424, which requires adult entertainment websites to implement age verification measures, into law at a bill signing ceremony touting a "child safety" agenda often regurgitated by Republicans all over the United States.
The liability attached to the new age verification requirement will enter force on January 1, 2025.
Modeled after other states with similar laws, H. 3424 requires age verification measures for websites that host content made up of at least one-third of age-restricted materials that could be considered obscene to minors.
Under the law, sites could be held liable for penalties and could be subject to class action lawsuits for alleged violations and harm to local families.
"Protecting the innocence of our state's children is our shared responsibility, and as threats to our children emerge, we must adapt our laws to ensure their safety," said McMaster in a statement.
State Rep. Travis Moore, the bill's chief Republican sponsor in the House, said, "The state clearly has a compelling interest to protect our children, and that is what this bill does."
Adult industry trade group the Free Speech Coalition (FSC) expressed dismay at McMaster for signing H. 3424.
"It's unfortunate that South Carolina chose to join its neighbors in passing an ineffective website-based age verification mandate despite knowing that it's unconstitutional," FSC executive director Alison Boden told AVN.
Meanwhile, Tennessee Gov. Bill Lee signed Senate Bill (SB) 1792. Proposed by state Sen. Becky Massey, a Republican like Gov. Lee, the bill served as a companion to the House version of the measure introduced by state Rep. Patsy Hazlewood, also a Republican. Senate Bill 1792, while similar to the South Carolina measure, is particularly punitive, given the felony criminal charges violators of the law could face.
According to the measure, any individual or commercial entity that publishes or distributes adult content on a website, consisting of at least one-third or more of the total content on the site, without verifying the age of users is subject to a Class C felony and is liable for other fines and civil penalties. Current criminal statutes in Tennessee outline a Class C felony as punishable by a term of incarceration for up to three years but no more than 15 years. A jury can also assess a $10,000 fine.
"[SB 1792] makes it a felony to operate, or seemingly even link to, a platform that does not perform age verification," Boden added when asked about the Tennessee law. "It's an attack not only on the adult industry but on the First Amendment rights of millions of people who engage with adult content online."
Based on AVN's previous reporting on age verification legislation, Tennessee could easily be considered the most punitive age verification law anywhere in the United States. SB 1792 takes effect on January 1, 2025. It's very likely that a class of adult entertainment industry stakeholders and civil liberties groups could sue in a federal district court to enjoin the law from being enforced by Tennessee Attorney General Jonathan Skrmetti, a Republican.
"It's ridiculous, unconstitutional, and should swiftly be disposed of in federal court," said Corey Silverstein, a Michigan-based adult industry attorney specializing in First Amendment law and criminal defense. "I wish I could say that I'm surprised, but given the pattern from state lawmakers across the country, this is the next chapter in a very dark period of legislative history."
"State lawmakers seem to be pretending that existing Supreme Court precedents and the First Amendment don't exist," Silverstein added.
He then pressed the importance of the U.S. Supreme Court taking up the case of Free Speech Coalition et al v. Paxton, which challenges another extreme age verification law implemented by the state legislature in Texas.
Boden's group serves as the lead plaintiff in a class of adult entertainment industry stakeholders, mainly the parent companies of the largest adult tube sites on the internet, challenging Texas House Bill 1181. The American Civil Liberties Union took up the case for FSC and the other plaintiffs as counsel. Currently, the plaintiffs are awaiting a ruling on a petition for a writ of certiorari granting an appeal for the Supreme Court to review the FSC's case.
Silverstein, with fellow industry attorney Larry Walters of Walters Law Group and activism counsel for the Electronic Frontier Foundation (EFF), filed an amicus brief on behalf of EFF and the Woodhull Freedom Foundation urging the conservative-leaning high court to grant the writ of certiorari.
