Montana's Porn Age Verification Law Is Headed to Court

"Invoking the innocence of children is not...a magic incantation sufficient for legislatures to run roughshod over the First Amendment rights of adults."

It seems that a puritanical wave is sweeping the country as state governments increasingly try to make it more difficult to access pornography from within their borders. A lawsuit is challenging one of those laws, and this week, a federal judge allowed it to continue.

Montana is one of multiple states in recent years to pass a law requiring pornographic websites to verify users' ages. Under Senate Bill 544, any website that "knowingly and intentionally publishes or distributes material harmful to minors" must "perform reasonable age verification methods to verify the age of individuals attempting to access the material," so long as the site in question "contains a substantial portion of the material."

The statute defines "material harmful to minors" as, essentially, the depiction of any sexual acts, covering everything from straightforward pornography all the way up to and including "bestiality." It further notes that "reasonable age verification methods" can take the form of "a digitized identification card" or some other system that either checks a user's "government-issued identification" or otherwise "relies on public or private transactional data."

While perhaps well-intended, the law is a civil liberties nightmare: First of all, as a general rule, pornography is free speech protected by the First Amendment. And as Elizabeth Nolan Brown wrote in the April 2024 issue of Reason, the sort of age verification law that some states now favor "creates a record, permanently attaching real identities to online activity that many people would prefer stay private," and "even the best verification methods would leave people vulnerable to hackers and snoops."

The law also stipulates that it applies when the material in question constitutes "more than 33 1/3% of total material on a website," meaning a site could be forced to enact an onerous age-verification scheme even if well over half of its hosted content does not meet the state's definition of disallowed material. One imagines that porn sites could simply load up their servers with enough inoffensive content to stay on the right side of that ratio, but instead, sites like Pornhub have simply blocked access in Montana, as they have in many other states that have passed these laws.

In May 2024, a group of organizations and individuals led by the Free Speech Coalition filed a federal lawsuit seeking an injunction against the enforcement of the law. Per the lawsuit, S.B. 544 "operates as a presumptively-unconstitutional prior restraint on speech" since it requires "the use of some particularized approval method as a condition to providing protected expression."

The plaintiffs further alleged that the law violates the 14th Amendment, "as it impinges upon liberty and privacy interests in one's own private sexual conduct….Age-verification over the internet, in the manner contemplated by the Act, invites the risk, real or reasonably perceived, that the viewer's digital 'fingerprint' will be left on the site….It's a striking invasion of privacy at a time and place when a person legitimately expects it most. No governmental interest exists sufficient to justify this intrusion."

In June, Montana Attorney General Austin Knudsen filed a motion to dismiss. Knudsen writes in his brief that "the First Amendment doesn't protect content that is obscene for minors."

"The Supreme Court has recognized time and again that state legislatures may pass laws that protect minors from material that is 'obscene as to youths,'" Knudsen continued, and S.B. 544 "doesn't prevent adults from accessing age-restricted material they have a right to access—it requires only that commercial entities employ reasonable methods to verify that their customers are of age."

"Invoking the innocence of children is not, and cannot be, a magic incantation sufficient for legislatures to run roughshod over the First Amendment rights of adults," the plaintiffs shot back in a reply brief. "States may, of course, 'pass laws that protect minors from material that is "obscene as to youths"'….But efforts to do so must not disregard the rights of adults who are ensnared in the net not intended for them."

In a decision issued Tuesday, Judge Donald Molloy of the U.S. District Court for the District of Montana Missoula Division denied Knudsen's motion, siding with the plaintiffs in the majority of their arguments and allowing the lawsuit to proceed.

Regarding whether the state's obligation to protect children from obscenity bypasses the plaintiffs' First Amendment rights, "plaintiffs have the better argument," Molloy wrote. The government has the "ability to restrict the dissemination of materials that would be obscene" from minors, he found, "but even those regulations cannot impede an adult's ability to see the same material without triggering heightened scrutiny so long as the material retains some First Amendment protection." He then quotes from U.S. Supreme Court Justice Thurgood Marshall, who wrote in 1983's Bolger v. Youngs Drug Products Corp. that "the government may not 'reduce the adult population…to reading only what is fit for children.'"

Molloy also found plaintiffs' argument about the 14th Amendment compelling. "Plaintiffs have identified the private sexual conduct of consenting adults as the interest at issue," he wrote. "Contrary to the State's attempt to muddle the issue, Plaintiffs have not asserted that minors have this same liberty interest or that adults have an interest in gaining access to such materials for minors. As argued by Plaintiffs, the State's 'argument betrays the deeply mistaken belief that any regulation "concerned with minors" is somehow immune from judicial scrutiny for the burden it places on adults.' Not so."