Kansas is playing with fire when it comes to mandatory age verification for porn sites
Falling in line with recent legislation in other states, the regulations around web access in Kansas present a slippery slope. // Adobe
Lawmakers in Kansas recently adopted a new bill requiring online adult platforms to verify the ages of all users who log on to IP addresses from within the state. Presented as a child protection measure, Senate Bill (SB) 394 struck a chord with LGBTQ+ rights and civil liberties activists due to definitions in the new bill that could broadly censor forms of expression otherwise protected by the First Amendment.
This measure was pushed through near the end of the legislative session, which has adjourned pro forma.
As things currently stand, Senate Bill 394 was officially presented to Democratic Gov. Laura Kelly for her to sign. She has yet to take action on the bill. If she signs the bill into law, Kansas will join the ranks of at least nine U.S. states with laws on the books that require adults to submit a government identification card or some transactional data to adult platforms to confirm they are 18 years or older. Arkansas, Florida, Indiana, Montana, Mississippi, North Carolina, Texas, Utah, and Virginia have implemented such laws.
Some states already enforce these laws, while others are preparing to implement them in the upcoming fiscal years. Lawmakers in Jefferson City are similarly considering age verification legislation in Missouri. These proposals, most from ultraconservatives who ideologically hate legal pornography and other forms of protected speech that deal with sexuality to any degree, are still in the lawmaking process.
Laws like these are introduced and passed through states that are predominantly controlled by hard-right state legislatures with supermajorities and a unified Republican government. This means the Republicans control both, the state legislature and the chief executive position of governor. While some deeply red states that pass these laws do have Democrats in power or a divided government, it is usually a tactic left-leaning lawmakers who have openly expressed a degree of hesitation for adopting these types of laws to vote “yes,” so the GOP doesn’t ridicule them. This is what happened in Kansas with SB 394.
Total “bipartisan” support for the bill allowed it to advance through the state Senate, 40-0, with what the bill’s far-right sponsors of SB 394 presented as a “common sense” measure, accepted by the upper house’s most conservative and progressive members. Note, there are only eleven Democratic senators in the state Senate. During a floor debate in Topeka, the concept of “broad” support clearly wasn’t the case in the House of Representatives a few weeks ago. State Rep. Susan Humphries, R-Wichita—a staunch critic of reproductive rights in Kansas—served as the bill carrier in the House. According to the Associated Press, most of the woefully outnumbered Democrats in the House voted against SB 394 because of language that critics believe could be used to censor LGBTQ+ speech and other forms of legal expression openly.
The Pitch reached out to Rep. Humphries and her office for comment. No response was received by press time. In the query, this journalist asked if Humphries viewed age verification as a tool to restrict young women from viewing material on the internet that deals with reproductive rights and abortion access.
A look at the bill language provides a look at a regulatory regime that empowers Attorney General Kris Kobach—the anti-immigration hawk and white nationalist-supported xenophobe—to enforce regulations that require the parent companies of porn websites like Pornhub or xHamster to implement age-gating software or other so-called “reasonable” measures to prevent access from minors. For example, sites that are found to have violated the age verification requirements could be fined tens of thousands of dollars.
The bill also creates a civil action for parents and guardians to sue for at least $50,000 or more to seek recovery due to reported harm. While no one disputes the importance of protecting minors from online age-restricted content, civil liberties advocates and privacy rights activists have criticized mandatory age verification for violating the First Amendment’s basic tenets across the United States. The American Civil Liberties Union and its local chapter in Kansas maintain that age verification is a free speech violation. In the case of the Kansas bill, the bill sponsors define content “harmful to minors” broadly. This includes the reliance on the definition of “sexual conduct” as it is defined in Kansas statutes. The legal term “harmful to minors” refers to the existing definitions in KSA 21-6402. According to the Kansas Office of Revisor of Statutes, KSA 21-6402 covers legal definitions of what is “harmful to minors.” Sexual conduct, per the current statute, “means acts of masturbation, homosexuality, sexual intercourse or physical contact with a person’s clothed or unclothed genitals or pubic area or buttocks or with a human female’s breast.”
“Acts of homosexuality” struck a chord during the floor debate in the House. Rep. Rui Xu—a Democrat hailing from the suburban village of Westwood, Kan., near Kansas City—pressed Rep. Humphries and her Republican colleagues on the problematic definitions in the bill. Coverage of the floor debate authored by Kansas Reflector reporter Rachel Mipro refers to Rep. Xu’s comments, indicating, “With all these bills, think about the unintended consequences or intended consequences, I don’t know. The definitions are much broader than we actually think.”
Rep. Xu reiterated his concerns about Senate Bill 394 in a brief phone conversation with The Pitch, adding that Republicans in power do little to thoroughly vet such controversial legislation. “At least in terms of legislation this year, they are really speeding through legislation that isn’t quite ready for prime time. They are really cramming through stuff that has really broad unintended or intended consequences,” Xu warned. “I don’t know that they knew that the definition of “act of homosexuality” was a part of that bill.” Returning to the floor debate on Senate Bill 394 in the House, the bill’s proponents—including bill carrier Rep. Humphries—completely dismissed censorship concerns raised by the majority of Democrats and two Republicans who splintered from the majority.
Instead, Humphries relied on anti-porn talking points that insinuate that pornography is addictive and should be considered as a public health crisis. There is ample evidence that early childhood exposure to age-restricted content, including pornography, could have negative implications on a minor’s health. However, one of the glaring shortcomings of these sorts of measures is that they ultimately rely on ideology rather than scientific evidence to justify their implementation. A simple internet search will show that a vast majority of the organizations supporting mandatory age verification measures are socially conservative and Christian nationalist-leaning organizations, including the Heritage Foundation and their Project 2025.
Project 2025, a coalition of over 100 conservative-leaning organizations, ranging from moderate business astroturfing front groups to legitimate anti-LGBTQ+ hate organizations, holds a very frightening stance that anything they view as “pornography” or “harmful to minors” should be outlawed and stripped of its First Amendment protections. This is one point of contention for the age verification bill in Kansas. Since the bill’s sponsors are relying on a definition of “sexual conduct” that is “harmful to minors,” which holds that simply being homosexual is obscene, then the bill could be viewed as a Trojan horse for censorship.
“Nobody wants minors watching porn,” opines Rep. Brandon Woodard, D-Lenexa, in a text message to The Pitch, “but SB 394 is rushed, messy, and will have unintended consequences.” Woodard, who is openly gay, shared Rep. Xu’s viewpoint that the bill is “unclear.” “There are multiple definitions in state statute that deal with what is harmful to minors,” he said. “That needs clarified and cleaned up next year.”
On a similar note, Senate Minority Leader Dinah Sykes, D-Topeka, recently told LGBTQ+ news outlet The Advocate that Senate Bill 394 is one of several bills adopted by the Kansas state legislature that is a pure tactic of hate. Sykes asked, alluding to the mutual concern of unintended consequences, how or what is pornographic. She asked rhetorically, “That’s why I had reservations about the bill, those gray areas, and who was deciding what is pornographic? Is it going to be a piece of artwork that we all agree on, or is that someone is going to pick and choose?” Though Sykes supported the bill in the Senate, she contented to The Advocate journalist John Casey that SB 394 would make Kansas a much less welcoming place.
If Gov. Kelly adopts the age verification proposal, porn websites like Pornhub will likely choose to block the entire Kansas digital space rather than comply with the law. Aylo, the Canadian parent company of the popular adult tube site, has pulled out of states like Texas and Utah. For each state Pornhub pulled out of because of age verification legislation, internet searches for virtual private networks have skyrocketed.
A virtual private network, or VPN, spoofs a web user’s IP address and ultimately masks a user’s location data, which might fall under the geographical block. VPNs can be used widely for privacy purposes but are gaining popularity given the fact that more jurisdictions are falling to the oversight of state laws that age-gate entire swaths of the internet—an act that is considered unconstitutional by the vast majority of First Amendment rights attorneys and legal scholars. Due to this fact, one course of action that Aylo and several adult entertainment industry companies and stakeholders have resorted to is legal action in federal courts across the country. Civil society groups are also in the fight. As mentioned, the American Civil Liberties Union (ACLU) opposes mandatory age verification requirements. The ACLU of Kansas explained in an emailed remarks to The Pitch why SB 394 is simply a tactic of far-right state censorship.
“Senate Bill 394 absolutely does not give license to any state actors to broadly censor LGBTQ+ expression,” Micah Kubic—the executive director of the ACLU of Kansas—told The Pitch in their emailed remarks. “While it unfortunately includes homosexuality in its definition of sexual conduct, the bill also establishes clearly that the material in question must also meet the existing legal requirements for obscenity. We understand the concern that this legislation, like many, could be weaponized to target LGBTQ+ content broadly, and if anyone is targeted in such a way, we hope they will contact us.”
“This is yet another reminder of how unfortunate it is that extremist politicians in our state have so frequently targeted the LGBTQ+ community and misused the legislative process,” Kubic concluded.
Kubic’s position is precisely what the national ACLU argued in an amicus brief filed at the U.S. Fifth Circuit Court of Appeals in the case Free Speech Coalition et al. v. Paxton. This case deals with House Bill 1181—a Texas mandatory age verification law requiring adult sites to post so-called health “warnings,” as if a user was logging onto a beer or tobacco product website. The Free Speech Coalition—a trade group representing adult companies—and a plaintiff class of adult entertainment industry companies, including Aylo, sued Texas Attorney General Ken Paxton in a federal district court to rule it unconstitutional. Senior U.S. District Judge David Alan Ezra of the Western District of Texas ordered House Bill 1181 to be unconstitutional and temporarily blocked it from being enforced. Texas officials quickly appealed the preliminary injunction blocking enforcement of the law to the notoriously conservative Fifth Circuit in New Orleans. This led to a months-long legal showdown between porn companies and the state of Texas.
Just a few weeks ago, a split panel of three Fifth Circuit judges, 2-1, overruled Judge Ezra’s preliminary injunction blocking the enforcement of House Bill 1181. The majority of judges ruled that mandatory age verification was constitutional despite decades of case law and U.S. Supreme Court decisions suggesting otherwise. In dissent, Reagan-era appointed Senior Fifth Circuit Judge Patrick Higginbotham argued that the majority erred in dismissing these Supreme Court decisions, such as Reno v. American Civil Liberties Union. In this landmark Supreme Court decision, the court not only gutted the Communications Decency Act of 1996 and affirmed the constitutionality of the controversial Section 230 safe harbor statute, but also found that age verification requirements are unconstitutional when less restrictive means are available.
But it is the position of the plaintiffs before the Fifth Circuit that says House Bill 1181 is, instead, very restrictive. All of the age verification laws on the books or bills currently proposed in dozens of state legislatures, including the Kansas bill and the Texas law, derive from model legislation circulated by anti-porn and Christian nationalist groups—like the Heritage Foundation, the National Center on Sexual Exploitation, the American Principles Project (APP), or the Center for Renewing America (Heritage, APP, and the Center for Renewing America are all involved with Project 2025). The plaintiffs argue that age verification in the context of Texas law and similar laws, including Kansas SB 394, is patently unconstitutional due to what they claim are restrictive ways that can be used to censor protected speech.
“The Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech,” Judge Higginbotham wrote in his dissent against the majority, adding that such a law “must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.”
Disclosure: The author is a member of the Free Speech Coalition. The coalition or its members didn’t compensate him for writing this column, and he meets The Pitch’s editorial independence guidelines.
