NASHVILLE, Tenn.—State lawmakers in Tennessee amended their age verification law requiring adult platforms to check the ages of all users, say attorneys representing the office of Republican Attorney General Jonathan Skrmetti in a Friday court filing.
An amended version of the Protect Tennessee Minors Act (PTMA), first adopted in Spring 2024, removes a key definition of obscenity and material harmful to minors to align it with a definition used elsewhere in the state law and one similar to Texas House Bill 1181.
The Texas law is an analogous statute under judicial review before the U.S. Supreme Court, which is the focus of the case Free Speech Coalition et al. v. Paxton.
The amendment to the Tennessee law was made in response to a companion federal lawsuit filed by the adult industry trade group the Free Speech Coalition (FSC) and a plaintiff class of other stakeholders that challenges its constitutionality.
In November 2024, FSC filed its initial suit in the Western District of Tennessee. By Dec. 30, Chief U.S. District Judge Sheryl H. Lipman ruled the initial age verification law, Senate Bill (SB) 1792, as unconstitutional. However, the U.S. Sixth Circuit Court of Appeals in Cincinnati lifted a preliminary injunction and said the law could be enforced.
The companion lawsuit is Free Speech Coalition et al. v. Skrmetti.
What prompted the revision in the Protect Tennessee Minors Act, as spelled out in the bill proposing the amendment, SB 448, was a continuity concern raised by Judge Lipman.
"Defendant Jonathan Skrmetti, Attorney General for the State of Tennessee, provides notice of recently enacted legislation to amend the Protect Tennessee Minors Act," reads the May 9 filing to Judge Lipman. "Plaintiffs challenge [the] constitutionality of the PTMA, which regulates websites that publish 'content harmful to minors.'
"The newly enacted legislation changes the PTMA’s definition of 'content harmful to minors,'" the filing adds. It turns out that Tennessee lawmakers did not initially adopt the obscenity definition used across various state laws, and created something unique to the PTMA.
The newly revised defition outlines "harmful to minors" content as that which "'appeal[s] predominantly to the prurient, shameful or morbid interests of minors,' 'is patently offensive … with respect to what is suitable for minors,' and '[t]aken as whole lacks serious literary, artistic, political or scientific values for minors,'" the filing reads.
"That definition, as this Court previously stressed, mirrors traditional obscenity doctrine and thus eliminates any perceived differences between the PTMA and content that States may lawfully regulate."
Addressing Judge Lipman's concern that in the initial incarnation of PTMA, "Tennessee chose not to adopt an obscenity definition, and it could have done so," Friday's filing notes, "Now, Tennessee unquestionably has done so. SB 448 deletes the PTMA-specific definition of 'content harmful to minors' previously codified."
Tennessee law traditionally defines obscenity using the three-part Miller test, classifying material as obscene if it appeals to prurient interests, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. Senate Bill 448, which was adopted by Republican Gov. Bill Lee on May 8, applies the historical uniform obscenity statute to be the statutory rule if age verification is upheld in the Texas age verification case currently at the U.S. Supreme Court.
