With the proliferation of state legislatures passing resolutions terming pornography a “public health crisis” (or something similar) and many states considering some version of the so-called “Human Trafficking Prevention Act,” it’s clear that however much the public’s acceptance and tolerance of pornography may have grown in recent years, it remains a popular political football for legislators to kick around.

Some of these legislators doubtlessly are casting an envious glance across the pond to the United Kingdom, which is poised to enact age verification requirements for sites which distribute sexually explicit content and looking for some means by which the U.S. can impose the same sort of measure, domestically.

This mix of political circumstances raises an important, fundamental question: Can the U.S. Congress pass a law mandating online age verification of users who visit adult sites which would survive court scrutiny?

According to both case law in this area and legal experts interviewed by YNOT, the short answer appears to be no.

“Imposing age verification requirements on adults restricts access to protected speech, and results in constitutional concerns,” said attorney Larry Walters – who, among other things, is part of the legal team currently challenging the constitutionality of the (FOSTA) on behalf of the Woodhull Freedom Foundation and other plaintiffs. “Like the other state and federal age verification laws that have been struck down by the courts, it is expected that any new bill would use definitions that are overbroad.”

The problem of overbreadth is part of what doomed a previous attempt to regulate sexually-explicit expression online, when the courts shot down the Child Online Protection Act (“COPA”).

In a decision issued in March 2007, U.S. District Judge Lowell A. Reed, Jr. concluded that “under COPA, the terms ‘commercial purposes’ and ‘engaged in the business’ are defined very broadly and include within their reach Web sites which only receive revenue from advertising or which generate profit for their owners only indirectly” – a conclusion which spoke to the law’s likelihood of implicating speech which falls well outside the realm of commercially produced pornography.

In a stinging footnote in the same decision, Reed eviscerated the government’s contention that COPA targeted only commercial speech – and highlighted what he appeared to think was a meaningless dodge in the first place.

“Defendant’s contention that COPA regulates only commercial speech and, thus, should be analyzed under the less exacting standard for such speech is utterly meritless,” Reed wrote. “If accepting advertising or selling subscriptions transformed speech into commercial speech, the First Amendment protections afforded to many modes of communication, including print, would be completely destroyed.”

This is significant, in part because if Congress were to pass a law mandating online age verification, defining the scope of the law would be crucial to defending it against an inevitable legal challenge.

As Walters noted, the term “pornographic websites” is “difficult to constitutionally define in a way that does not result in a chilling effect on protected speech.”

“Terms like ‘erotic’ are extremely broad and could include a wide variety of material that is legal for minors to access,” Walters said. “It is impossible to determine in advance what content might arouse sexual interest or excitement in particular viewers. The overbreadth of terms like this violates the First Amendment, in my view. Moreover, there is a due process concern with vague definitions, which results in self-censorship and erring on the side of caution.”

Attorney Marc Randazza, who is currently handling several cases which involve online speech many find to be objectionable, said the challenge of online age verification runs deeper than the law, even if it were possible to craft a statute which could survive strict scrutiny.

Asked how it was possible to confirm a user’s age in an environment which makes it nigh impossible to even definitively determine his or her identity, Randazza answered flatly: “You can’t and you don’t.”

“Technologically, I don’t see how you can do it, and legally, I don’t see how it can be imposed by law and be constitutional,” Randazza added.

Beyond the technological challenge of coming up with an effective age verification system, adopting and employing any such solution would likely add a financial burden for companies and individuals who publish sexually-explicit speech on the internet. This burden would introduce another constitutional hurdle – and again duplicate one of the legal vulnerabilities of COPA cited by the court when it struck down the law.

“Requiring the use of a payment card to enter a Web site would impose a significant economic cost on Web site owners,” Reed wrote in his decision. “In addition to set-up fees and administrative fees, Web site owners would also need to pay fees for processing payment card information for each transaction.”

Reed also noted that financial institutions “will not process or verify a payment card in the absence of a financial transaction,” rendering the idea of having free sites accept credit cards as a measure of age verification problematic, to say the least.

“Express policies of the payment card associations prohibit online merchants who sell content from processing transactions in the amount of zero dollars,” Reed wrote. “Verification by payment card will therefore be practically unfeasible for all of the plaintiffs and most other Web site operators and content providers covered by COPA who distribute their content for free.”

Theoretically, if age verification services could be offered free of cost to consumers and publishers alike, would this aid the government’s constitutional defense of the law?

“A decreased financial burden might be considered by the courts in evaluating whether the bill used the least restrictive means to serve a compelling governmental interest (as is required by the strict scrutiny test),” Walters said. “However, it would not be enough to justify mandatory age verification by all adults seeking to access erotic material.”

In other words, to the extent a truly free-of-charge age verification system would help the government’s case in the context of the “least restrictive means” analysis, this alone likely wouldn’t come close to overcoming the other constitutional defects in such a law.

Randazza noted that even if an age verification law could be constructed to survive a legal challenge, it would create a bizarre circumstance with respect to other laws pertaining to sex and minors.

“The age of consent in many states is lower than 18,” Randazza observed. “So, we’re going to have a situation in which it’s legal for a kid to fuck, but not to acquire images of people fucking? How does that make sense?”

Maybe someday, technology will emerge which enables website operators to reliably determine the age of those who visit the site. And perhaps changes in case law (or, far less likely, an amendment to the Constitution itself) will someday create a legal playing field in the U.S. which is more favorable to imposing an age verification system along the lines of what is now pending in the U.K.

That day is not today, however. For the time being, it appears highly unlikely age verification can be imposed on American website operators and users as a matter of law.

But what of the notion of the adult industry embracing such a system voluntarily? Are there sound arguments for doing so, rooted in public relations and perception, if nothing else? These and other questions will be examined in my next article for YNOT’s series of features on age verification.