Last week, a group of booksellers and others who publish materials on the Internet asked a federal court in Louisiana to halt a criminal law that requires folks in that state to verify the ages of visitors to their websites before permitting access to digital images, photographs, or videos that are “harmful to minors” — or else pay a fine of up to $10,000.
The plaintiffs argue that this newly enacted law violates the First, Fifth, and Fourteenth Amendments, as well as the Commerce Clause of the United States Constitution. In their 37-page complaint (PDF), they explain that the law is unduly burdensome because compliance with the Act requires booksellers to either:
(a) review each such Book, and place an Age Attestation Button in front of each cover which might be deemed material harmful to minors, (b)  place an Age Attestation Button in front of their entire website, or (c)  restrict website displays and sales to a small enough inventory of Books so that the bookseller could review all images of each cover.
That doesn’t sound so hard, does it?
I’m kidding, of course. It sounds dreadful. As the plaintiffs explain:
The first is an overwhelming burden (and, indeed, is impossible for bookstores which use a third party provider, and therefore do not themselves maintain or control the selection of Books or the pages containing the images of the book covers). The second unconstitutionally deprives all minors of access to all Books and other material on the websites–even material suitable for young children. And the third approach would require Louisiana booksellers to engage in massive self-censorship.
Quite frankly, it’s laughable that the Louisiana legislature, which passed this law with an overwhelming majority, and Governor Bobby Jindal, who signed it on June 23, 2015, seem to think that their state can regulate the ubiquitous Internet in any meaningful way.
The law applies only to those who distribute materials for commercial gain on the Internet from Louisiana, as though this limited measure will somehow “protect” minors in their state from seeing so-called “harmful” material, the vast majority of which is produced elsewhere in the United States and the world.
For example, minors from that state can easily drop by my small piece of the World Wide Web — emphasis on the World Wide — and see anything I’ve decided to publish from my residence in Pennsylvania.
Surely, though, nothing at the Misfortune of Knowing, a book blog, could possibly be “harmful to minors,” right?
The definition of “material harmful to minors” (and yet not obscene) is one of the biggest problems with this law.
The Louisiana law requires age verification when, in addition to meeting other factors, an average adult applying “contemporary community standards with respect to what is suitable for minors” would find the material offensive. But what community are we talking about? The most conservative parish or the most liberal one?
I’ve discussed this problem before, back when a group of researchers decried the use of words like “boobies” and “crap” in adolescent literature–words that do not offend the standards in my household or my community.
I am sensitive to concerns about “age appropriateness,” a topic I have discussed in Julie of the Wolves: An E-Book My Children Will Not Read Until They’re Older, a post some parents might not want their children to read because it reproduces the controversial passage from the book.
In my opinion, the burden is on the parents to police their own children, preventing them from reading a controversial (but not obscene) passage on my blog if it offends the standard of their household. While I think my then-six-year-old twins were too young to read that passage (because they wouldn’t understand it), I don’t think an older minor is too young to read it.
A passage like that on a commercial, Louisiana-based website wouldn’t necessarily qualify as one of the types of materials regulated by the law — which is limited to digital images, photographs, or videos — but who knows: it’s only words, but a JPEG! (See here). If the law did apply to JPEGs like that, even 17-year-olds would be prevented from reading it unless they lied about their age (which, of course, never happens, right? 😉 ).*
To the extent the law “protects” any minors (those who don’t lie about their age and don’t visit websites that originate outside of Louisiana), is this framework the least speech-restrictive way of doing it?
No. As the Plaintiffs allege in the Complaint:
Many computers—straight out of the box—include a ‘parental controls’ feature in their operating system. Almost all browsers also have parental control options. If a computer does not already have such a feature, it is easy to download one, for free, from many online services. These features enable parents to block access to sexually explicit materials on the Web…
These features aren’t foolproof, but neither is this vague and burdensome law. Hopefully, this law will suffer the same fate in the courts as have over a dozen other similar “statutes forbidding Internet communications deemed harmful to minors.” See American Booksellers Foundation v. Sullivan, 799 F. Supp. 2d 1078, 1080 Fn 15 (D. Alaska 2011)(striking down a similar law, and listing cases in other states).
Generally speaking, it’s better to let parents raise their own kids than to have the legislature, governor, or anyone else do it for them.
*At least the law does not hold Internet publishers liable when a minor falsely attests that s/he is over 18.
**The national American Civil Liberties Union, the ACLU of Louisiana, and Dentons represent the plaintiffs, who are: (1) Garden District Book Shop; (2) Octavia Books; (3) Future Crawfish Paper, publisher of Antigravity Magazine; (4) American Booksellers Association; and (5) Comic Book Legal Defense Fund.
***I first learned about this lawsuit from The Guardian.