Porn industry, Supreme Court weigh in as Wyoming requires age verification on adult sites

Wyomingites this week found their access to some corners of the internet curtailed as a new state law to prevent minors from accessing sexual content came into effect. 

On Tuesday, Wyoming joined a growing number of states in requiring companies that platform material “harmful to minors” — principally pornography — to verify a visitor’s age upon their landing on the website. 

Though driven by conservative lawmakers’ growing interest in shielding the eyes of the Equality State’s youth from sexual content, the new law means porn-seeking adults will be asked by compliant websites to show government identification or a photograph of their face to their computer camera. Though the law prohibits websites from retaining that data, opponents of similar measures elsewhere have questioned how enforceable that protection will be. 

At least one major platform, Pornhub, has chosen to simply block access to its website from Wyoming IP addresses. Beginning Monday, visitors to the site were greeted with a message criticizing Wyoming’s legislation and arguing it would lead to both less privacy and fewer protections for children. 

Pornhub has initiated the same measure in 19 other states that have required age verification.

Last week, the U.S. Supreme Court gave such laws the green light, ruling against the industry and finding that when balanced against the objective of protecting children, a similar measure in Texas did not violate Texans’ rights to free speech. Armed with that ruling the sponsor of Wyoming’s bill, Rep. Martha Lawley, told WyoFile she would seek to further strengthen her efforts for age verification online. 

“This decision has put to rest the one big argument that the porn industry could make,” the Worland Republican and attorney said. 

The state law that took effect Tuesday does not include criminal penalties and does not call for enforcement by the state. Instead, it gives Wyomingites a route to sue and seek hefty financial damages from companies they believe have failed to verify site visitors’ ages. Lawley didn’t pursue a more aggressive bill, she said, because she knew the issue was unsettled in the courts. 

Given the Supreme Court’s ruling, Lawley now believes she can bring amendments to add criminal penalties next legislative session, she said. Such a law change would draw Wyoming law enforcement into the effort to police online pornography, instead of relying on citizens to hire an attorney and file a lawsuit.

Texas’ law found success at the Supreme Court in part because the technology for age verification has evolved to a level where it no longer marks a major intrusion on adults seeking pornography, Lawley said. And she would continue, she said, to ensure that privacy protections for that data are built into future law. 

But in an earlier step in the Texas legal battle, a federal judge concluded that the state couldn’t guarantee adult purveyors of pornography would have their privacy protected, including from the government itself. “It runs the risk that the state can monitor when an adult views sexually explicit materials and what kind of websites they visit,” Judge David Alan Ezra wrote in a September 2023 order blocking the implementation of the law. 

Ezra, appointed to the bench by Republican President Ronald Reagan, was overruled 2-1 by a federal appeals panel the next year, which allowed the law to go into effect while the case continued.

On June 27, the last day of its term, the U.S. Supreme Court upheld the Texas law with a 6-3 decision, with the three liberal justices dissenting. 

Though the prevailing justices agreed that requiring age verification online “burdens” adults, they found the burden doesn’t outweigh states’ interest in finding ways to enforce the same laws online that prevent minors from going to a gas station and buying nude magazines. “The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” Justice Clarence Thomas wrote in the majority opinion. 

But in a dissenting opinion, Justice Elena Kagan argued that Texas and states following its lead need to find a way to keep minors off pornography sites that doesn’t interfere with adults’ rights to free speech. In her opinion, she echoed Ezra’s concerns that there could be wide-ranging ramifications for people who give their personal data to porn sites in order to access them. 

“It is not … like having to flash ID to enter a club,” she wrote. “It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to . . . who knows? The operator might sell the information; the operator might be hacked or subpoenaed.”

In its message for Wyoming visitors, Pornhub offered an alternative strategy. The site’s home page carried a video from an adult film actress who, fully clothed, conveys the message that Pornhub believes requiring age verification will draw traffic to websites that are less likely to comply with the law because those behind them believe they can dodge enforcement. 

Website operators, who can be anywhere in the world, are difficult to police. Those sites that will dodge age verification laws are also less likely to moderate content and prevent the distribution of child sexual abuse material, the company argued. Instead, the actress and activist Cherie DeVille asks site visitors to “contact your representatives before it is too late and demand device-based verification solutions.” 

DeVille has run for elected office herself — alongside the rapper Coolio, she mounted a brief bid for president in the 2020 election under the slogan “Make America Fucking Awesome Again.” 

Device-based solutions, the safety technology preferred by Pornhub, which would have users register their device as in the control of someone older than 18. Parents could then ensure their children’s devices mark them as minors, and porn websites could block the devices based on their IP address. Such a system would also prevent children from accessing other age-restricted websites like gambling sites, tobacco or cannabis vendors, Pornhub argued in a blog post.

As the most visible avatar for a respectable adult content industry, Pornhub isn’t immune to criticism. Journalists and sexual exploitation victims have documented the presence of abusive videos, including those of minors, sexual assault, rape and other violence, on its site throughout the years. Company officials say they have reacted to such reports by tightening their content moderation procedures. 

During a legislative session rife with divisive social issues, Lawley’s bill largely flew under the radar. Only one House member, Laramie Democrat Karlee Provenza, opposed it on its final vote. 

“Unfortunately, there was little appetite from members of the Legislature to consider the potential problems with this legislation,” Provenza wrote in a statement to WyoFile. “We live in a world where countless people fall victim to online scams that cost them tens of thousands of dollars every day, and the government just made it easier for people to ask for IDs for no legitimate purpose so they can steal identities. We put our constituents at risk and solved nothing.” 

In the Senate, it received three no votes, including the Senate’s two Democrats — Chris Rothfuss, also of Laramie, and Mike Gierau of Jackson. A no vote from Sen. Cale Case, a long-serving Lander Republican who leans Libertarian, made the limited opposition bipartisan. 

It remains to be seen if the bill’s implementation will draw out new opposition — whether from an unlikely to-be-outspoken constituency of Wyoming porn aficionados, or from those concerned about broader free speech ramifications. In addition to Lawley’s promise to revisit the statute in light of the Supreme Court’s decision, conservative Wyoming lawmakers are focused on regulating minors’ possible exposure to sexually explicit material in another arena: public libraries. 

Though the justices didn’t touch on libraries in their ruling, Lawley said she believed their decision could play into that debate as well. “It gives those of us who deal with policy some understanding into where the laws are in regards to free speech and obscenity and protection of children,” she said.

The ruling was focused on commercial websites, not public libraries, the head of an organization representing the state’s librarians told WyoFile. “The Wyoming Library Association continues to assert that children’s access to library materials is a parent’s responsibility,” Lindsey Travis, the group’s president, said.