South Dakota to push ahead with age verification law following SCOTUS opinion

The Supreme Court ruling upholding Texas’ age verification requirement for porn sites has set the stage for a wave of legislation in the U.S. Up first is South Dakota, where an age verification law is set to take effect today. It requires any site hosting adult material “in the regular course of the website’s trade or business” to implement age verification or age estimation technology.

In Texas, the law applies to websites on which one-third or more of the content is considered pornographic or adult. Reporting from South Dakota Searchlight says South Dakota doesn’t have that proportional restriction; lawmakers behind the bill say the number is arbitrary, something Texas “made up.”

The piece quotes South Dakota Attorney General Marty Jackley, who says the Supreme Court decision “supports the protections enacted by the South Dakota Legislature to protect South Dakota families.”

It also quotes those who believe the laws could, in fact, harm some families. In her dissent to the SCOTUS ruling, Justice Elena Kagan argues that Texas should have tailored its law more narrowly, “to ensure it is not undervaluing the interest in free expression.”

“Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience,” Kagan writes. “But the First Amendment protects those sexually explicit materials, for every adult. So a state cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children.”

In South Dakota, the American Civil Liberties issued a statement to Searchlight, saying the Supreme Court “has departed from decades of settled precedents that ensured that sweeping laws purportedly for the benefit of minors do not limit adults’ access to First Amendment-protected materials.”

NetChoice sues Arkansas again, warning of frivolous litigation

Free Speech Coalition, the industry group for porn providers, may have been unable to move the Supreme Court. But a more powerful (and richer) industry lobby continues its bulldozer tour across U.S. legislation to impose age assurance requirements on social media.

NetChoice’s members include Amazon, Google, Meta, Netflix, PayPal, reddit, StubHub, Trivago, X, Yahoo and YouTube (among others) – so it’s no surprise they have the resources to continue mounting legal challenges. Its latest action is suing the government of Arkansas (for a second time) over Act 901, which a blog post calls “another unconstitutional attempt to censor online speech that directly defies the Supreme Court’s 2024 NetChoice doctrine by trying to dictate how online services display information.”

For First Amendment fear mongering, NetChoice brings out the big guns. Alleging that the bill’s requirements are “unreasonably vague,” it warns of censorship, and “frivolous lawsuits” that will “coerce online platforms to remove vast amounts of protected content that could be questionable – from discussions about historical documents like the Declaration of Independence to popular culture like Taylor Swift’s music.”

AP reports that the action also challenges a law prohibiting social media platforms from using a design, algorithm or feature it “knows or should have known through the exercise of reasonable care” would cause a user to kill themself, develop an eating disorder, become addicted to the platform, or purchase a controlled substance.

Summoning a far more obscure but no less mighty pop culture icon to the party, the suit “questions whether songs that mention drugs, such as Afroman’s ‘Because I Got High,’ would be prohibited under the new law.”

Georgia decision ‘a major victory for free speech’

Regardless of its stance in Arkansas, endless litigation appears to be working for NetChoice in Georgia, where a judge has upheld its challenge to the state’s proposed social media age check law, SB 351.

NetChoice Director of Litigation Chris Marchese calls the ruling “a major victory for free speech, constitutional clarity and the rights of all Georgians to engage in public discourse without intrusive government overreach.”

“Free expression doesn’t end where government anxiety begins. Parents – not politicians – should guide their children’s lives online and offline – and no one should have to hand over a government ID to speak in digital spaces.”

Article Topics

age verification  |  Arkansas  |  biometrics  |  digital ID  |  Georgia  |  legislation  |  Netchoice  |  South Dakota  |  United States