NASHVILLE, Tenn.—Lawmakers in Tennessee are considering legislation that would make it a requirement for adult-oriented businesses to post warning labels containing misrepresented or utterly unfounded claims about being exposed to pornography and adult products.
Senate Bill (SB) 2481 is primarily backed by Republican state Sen. Janice Bowling of Tullahoma, a member of a conservative Baptist church. It advanced out of the Senate on Wednesday.
According to the bill's current form, adult-oriented businesses will be required to prominently display paper warnings at entrances. The signs can be "no smaller than 8 1/2" x 11", in 48-point type, in boldface, block letters, centered on the sign." Additionally, the letters must be black on a white background. Posting these signs at places of business is a requirement to receive licensure to operate under county-level adult-oriented business regulatory boards. Note, not all counties in the state have these boards.
Adult-oriented businesses are defined by the state as "adult bookstores, adult mini-motion and motion picture theaters, adult cabarets, escort agencies, sexual-encounter centers, massage parlors, rap parlors, saunas, and similar businesses."
The required signs would carry messages such as:
Attention: By engaging in this type of entertainment, you may be contributing to an increase in domestic assault, rape or sexual assault, and human trafficking.
An alternate proposed message is:
Attention: By purchasing, borrowing, or using this pornographic material, you may be contributing to an increase in domestic assault, rape, or sexual assault, and human trafficking.
Republican state Rep. Monty Fritts of Kingston, also a conservative Baptist, carried the legislation in the House. SB 2481 would likely be adopted by the state's super-majority of Republican leaders.
SB 2481 is the companion bill to the House of Representatives version, House Bill (HB) 2314. According to the legislative record, the current form of SB 2481 was reconciled and amended to reflect uniform language in anticipation of eventual adoption by Tennessee Gov. Bill Lee, another conservative Republican.
This would make Tennessee one of the most tumultuous regulatory environments for adult-oriented businesses and online pornography in the country. Required labeling would be layered on top of the state's draconian age verification law, which carries a felony criminal offense for violators. Adult industry stakeholders are still engaged in litigation over this.
The approach supported by predominantly conservative lawmakers is akin to that for tobacco and alcohol product sales and is similar to digital warning labeling seen in Texas and Alabama.
In the case of Texas, lawmakers established a requirement for warning labels to be posted prominently on online pornography sites with compelled messages that indicate that the state's Health and Human Services Department identified the behavior of watching pornography to be addictive like drugs and alcohol. That was a marquee component to the law, House Bill (HB) 1181, which also included the Lone Star State's age verification statute targeting adult entertainment sites in Texas that ended up before the U.S. Supreme Court.
In the lawsuit brought by adult industry trade organization the Free Speech Coalition and the parent companies of major adult tube sites, a federal district court ruled that the compelled messaging component in HB 1181 was unconstitutional and a violation of the First Amendment due to a legal standard known as the Zauderer test. In First Amendment case law, the government can require private companies to provide certain messages for public health, as long as the message is purely factual and uncontroversial.
The health labels in the Texas law were found not to be scientifically accepted because they perpetuated the concept of pornography addiction as a legitimate medical diagnosis. The federal district judge ruled to reflect the accurate statement that there is no medically and scientifically accepted "pornography addiction" diagnosis.
A similar case can be made regarding the potential warning labels Sen. Bowling and Rep. Fritts are pushing. The proposed warning labels are not "purely factual and uncontroversial," notes First Amendment attorney Corey Silverstein.
“This amendment raises serious First Amendment concerns by forcing lawful businesses to disseminate government-compelled messaging that is, at best, highly contested and, at worst, misleading," Silverstein told AVN. "The government cannot condition a license on requiring speakers to adopt and promote a viewpoint that stigmatizes their own protected activity.
