Ohio House of Representatives
Ohio Rep. Steve Demetriou
Dubbed the Innocence Act, Rep. Demetriou’s bill would implement an age verification requirement similar to what has already been implemented in states with legislatures controlled by the Republican Party, like in Ohio.
He explained that his bill is intended to protect minors from what he views as the harms of pornography. “Online pornography is a threat to Ohio children,” he said, adding that the legal, highly regulated online adult industry “overlaps with human trafficking.”
Demetriou’s act is considerably aggressive. In its current form, companies and webmasters who don’t implement “reasonable” age verification methods could be subject to criminal charges – a third-degree felony. No other proposed and implemented age verification regulation in the country has such punitive criminal penalties – a felony, no less.
“It’s a shame that once again, a lawmaker with nothing more than a clearly religious right-wing agenda is behind a proposed bill that ignores the First Amendment and established case law from the United States Supreme Court,” said Corey Silverstein in an email to Scene.
Silverstein is a First Amendment attorney based in the village of Bingham Farms, Mich., in the metropolitan area outside of Detroit. Specializing in criminal defense and the body of law that touches adult entertainment, Silverstein expressed concern that Demetriou’s proposal is beyond any justifiable measure to be considered “reasonable.”
Silverstein adds: “The age verification components of the bill are nothing new and is merely copycat legislation in a wave of seemingly endless attempts by state governments to limit the accessibility of adult-themed content.”
What’s more alarming to Silverstein is that additional language in House Bill 295 creates a misdemeanor for anyone circumventing the age block from the side of the user – namely, teenagers who might be curious. How would someone get around an age block? Virtual private networks (VPNs) are one such way an individual can circumvent an age block or any sort of verification requirement.
VPNs are available on most mobile devices through the Apple App Store or Google Play Store. They are also free or relatively inexpensive. And, to think that a 17-year-old high school student can’t learn about and effectively deploy a VPN is short-sighted. “I can’t think of a worse idea than charging minors with criminal offenses for viewing adult content and potentially ruining their futures,” concluded Silverstein. “Attempting to shame and embarrass minors for viewing adult-themed content goes so far beyond common sense that it begs the question of whether the supporters of this bill gave it any thought at all.” He referred to Demetriou’s bill as a strategy to “scarlet letter” teenagers, or anyone who watches porn, and aggressively regulate sexual speech.
The First Amendment protects sexual expression. In recent decades, the U.S. Supreme Court has interpreted the First Amendment to cover a broad freedom of expression, including the ability to produce, post, view, and monetize legal, consensual pornography online. Mandy Salley, the chief operating officer and a sex workers’ rights advocate with the Woodhull Freedom Foundation, is concerned that Rep. Demetriou’s bill completely dismisses decades of First Amendment case law that Silverstein alludes to in his remarks.
“Rep. Demetriou’s claims about pornography are false and harmful,” Salley told Scene. In his press release announcing House Bill 295, Demetriou alleges that the adult entertainment industry is linked to organized criminal activity, like human trafficking. There is a clear line between illegal activity and the industry – the vast majority of pornography produced and available on websites like Pornhub is subject to longstanding federal obscenity laws requiring proof-of-age and recording-keeping for all people who appear in photos or videos of a sexual nature. Failure to comply with these laws is punishable by prison.
So, if the adult industry is exploitative in the format that Demetriou alleges, why isn’t there a successful concerted effort to outlaw pornography in the United States completely? This isn’t to say that adult industry and sex workers’ rights advocates don’t dismiss the scourge of child sexual abuse material or exploitation. Instead, as Salley argues, Demetriou’s bill is a measure to censor forms of speech that he disapproves of.
“HB 295 violates some of our most fundamental human rights – the right to privacy and free expression,” Salley said. “We want to see legislation that keeps everyone safe online without compromising our rights and freedoms.”
Salley also voiced concerns that the age verification legislation violates the complex privacy rights adults and minors have today.
This concern led Scene to contact the Electronic Frontier Foundation to understand their view on House Bill 295. The foundation advocates for privacy rights, in addition to expression online.
“This is a terrible bill,” said Jason Kelley, the activism director for the foundation. “This goes much further. Introducing criminal penalties for failing to verify a user’s age is a significant First Amendment violation of people's right to access protected speech online. And, of course, this law would impact all people – not just minors.”
Kelley referred to the history of litigation these bills have. The Free Speech Coalition, an adult entertainment industry advocacy organization, filed three federal lawsuits in Utah, Louisiana, and Texas. Federal district judges in Utah and Louisiana dismissed the lawsuits on technical grounds. But the lawsuit in Texas has garnered national attention. The Texas state legislature adopted an age verification law similar to what Demetriou proposed but added provisions that require adult websites to plaster pseudoscientific claims about so-called pornography addiction on marketing materials in a way that is similar to Surgeon General warnings on websites that advertise beer brands or electronic cigarettes.
The American Psychological Association doesn’t recognize the theory of pornography addiction as an addiction. Instead, combining social, cultural, and religious conditions could lead a person to assume that pornography viewing habits are addictive. The Free Speech Coalition argued and got a federal district judge to accept this in issuing a preliminary injunction to stop the law from being enforced during litigation. Counsel for the state of Texas appealed the ruling to the Fifth Circuit Court of Appeals and temporarily lifted the injunction allowing the law to enter force.
The Electronic Frontier Foundation, with the American Civil Liberties Union and a coalition of civil liberties organizations, filed an amicus brief in the Fifth Circuit arguing that age verification violates the civil liberties of adults and adult industry firms – similar to what Kelley argues here with regards to the Ohio age verification proposal.
Kelley said: “There are many more ways to limit minors’ access to this material than forcing every single person in Ohio to share their ID. Age verification is not a panacea, and legislatures need to stop acting like it is.”
“I’m from Ohio,” he said. “That this bill has so many cosponsors doesn’t just make me sad for the state of civil liberties, but sad for the entire state.” Cleveland.com reported that the bill is a “bipartisan” measure. But there is only one Democratic sponsor for Demetriou’s proposal; the rest are Republican lawmakers. There is no indication of House Bill 295’s chances of becoming law.
Neither Demetriou nor an office member returned Scene’s multiple requests for comment.
Michael McGrady Jr is a journalist specializing in covering the adult entertainment industry.
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