South Dakota Lawmakers Send Unconstitutional Age-Verification Bill To The Governor’s Desk
Lots of states have been passing performative, rights-violating bills that mandate sites hosting porn start performing age verification or suffer the consequences. The consequences can be severe, with fines being multiplied per access by unverified users on top of legal actions brought by state prosecutors.
Most of these follow the same problematic blueprint. Even if you ignore the obvious First Amendment issues (that these sites require verification from people who have full legal access to this content), you can't ignore the impossible logistics issues.
Almost every bill contains the same wording because they're all following the same special interest group's wording: any site with more than one-third (33.3%) pornographic" content is subject to the law. What's left unexplained is how sites are supposed to calculate this percentage. Is it one-third of all content? Is it one-third of the total amount of hosted content in terms of storage space? Or is it one-third of all uploaded content, regardless of file size? No one knows!
And those writing these laws don't even pretend to care there are no useful metrics that might allow sites to attempt to comply with these laws. On top of that, these laws pass the entire buck to websites, demanding they engage in reasonable" efforts to verify age, without providing any details as to what might be considered reasonable" by legislators.
Heads, the government wins. Tails, the websites lose.
Somehow, this had been made even worse in South Dakota with the complete elimination of one metric that held the slim possibility of providing websites with the guidance they needed to determine whether or not they needed to implement age verification processes.
The [South Dakota] Senate panel had two options for age verification on its plate Tuesday.
Each aimed to force adult sites to ask visitors for something like a credit card or state-issued driver's license to prove they're old enough to be there. Both required the deletion of that data after the visit. Each would let South Dakota's attorney general levy criminal fines against companies that don't comply.
One of them,Senate Bill 18, rejected by the committee, follows the model of Texas by targeting sites where one-third of the content is adult material.
HB 1053 draws no such line.
HB 1053 [PDF] is the bill headed to the governor's desk. Just because Kristi Noem - who was inexplicably elevated to the head of the US Dept. of Homeland Security - is no longer manning the desk doesn't mean her successor won't just as gleefully sign a bill that's not only unconstitutional, but one that makes it almost impossible for any host of third-party content to abide by it.
The one-third" language in the Senate bill at least indicated these legal impositions wouldn't affect most websites accessible by South Dakotans. The adopted bill, however, says no level of pornographic" material is acceptable without age verification.
Here's godawful state rep Bethany Soye (R-Sioux Falls) explaining her evisceration of the only thing keeping this proposed law from being an all-out assault on the internet in general.
The House bill came from Rep. Bethany Soye, R-Sioux Falls. On Tuesday, she said the one-third figure was pulled from thin air by Louisiana lawmakers looking to preempt concerns about an overly broad restriction in their age verification legislation.
Every state just blindly copied them," said Soye, who is an attorney. And I think that we can do better than that."
To her, the one-third standard amounts to an invitation for porn sites to find ways to keep their total adult content just below the line, perhaps at 29.9% pornography.
You can already see the loophole," Soye said.
But it's not even a loophole. Not a single state passing a similar bill has provided websites with any guidance as to how this 33.3% ratio should be calculated. Any service subject to laws like these has just pulled the plug in states where these laws have been passed, rather than subject themselves to multiple fines, fees, and DA-initiated legal action just because their math doesn't match the invisible, indescribable math being used to prosecute them. This brings the effective rate to 0.1%, which means pretty much any site can be sued/fined for violating this law.
And that means that adults in these states have no legal access to content they are supposed to have legal access to. That's the intent of these laws. They're not crafted to protect children. They're crafted to deny adults access to content legislators like Bethany Soye don't personally care for.
As I stated earlier, Bethany Soye is a terrible legislator and, I would reasonably speculate, a hateful bigot as well. I don't have any evidence of this other than her own legislative record, which shows her sponsoring bills that violate constitutional rights for the sole purpose of advancing her own personal moral views. She's already sponsored or co-sponsored bills targeting everything from adult content to drag shows to mask mandates during pandemics. While some might argue she does a good job representing her constituents because a lot of residents are just as bigoted, she does an absolutely abhorrent job protecting their rights, which might matter to them at some point when it's their favorite stuff being stifled by government incursions.
If this gets signed into law, it will be challenged in court. And it will be struck down once a federal judge gets a chance to read this blatant attack on the freedom to access content, which is a sizable part of the First Amendment. Until then, we're just going to have to endure the stupidity of Rep. Site and her cohorts in the state legislature who seem to believe a strong Republican majority gives them the right to extend their collective middle fingers to pretty much every constitutional amendment but the 2nd.