By Jim Saunders ©2024 The News Service of Florida
TALLAHASSEE — With the U.S. Supreme Court hearing arguments in January about a similar Texas law, Florida Attorney General Ashley Moody this week asked a federal judge to temporarily halt a lawsuit challenging the constitutionality of a new state law requiring age verification for access to websites with adult content.
The Free Speech Coalition, an adult entertainment industry group, and other plaintiffs filed suit on Dec. 16 challenging the law on First Amendment and other constitutional grounds. The law, which supporters say is designed to keep minors from viewing pornography online, is scheduled to take effect Wednesday.
In a motion filed Tuesday, Moody’s office requested that Chief U.S. District Judge Mark Walker issue a stay of the lawsuit. If granted, the motion would allow the Florida law to take effect and continue at least until the Supreme Court rules in the Texas case.
The motion said the Supreme Court, which will hear arguments on Jan. 15, likely will resolve First Amendment issues that would apply to the Florida law.
“The Supreme Court will hear argument in (the Texas case) in less than a month, on January 15, and in keeping with its usual practice will issue its final opinion by the beginning of July at the latest,” the motion said. “That is barely six months, after which this (Florida) lawsuit could freely proceed with the benefit of the Supreme Court’s authoritative ruling in that case.”
The age-verification law was part of a broader bill (HB 3) that also seeks to prevent children under age 16 from opening social media accounts on some platforms. The bill, a priority of then-House Speaker Paul Renner, R-Palm Coast, was one of the highest-profile issues of the 2024 legislative session.
The social-media part of the bill drew the most attention and faces a separate First Amendment challenge from tech-industry groups. Moody has agreed not to enforce that part of the bill until Walker decides whether to grant a preliminary injunction sought by the plaintiffs. Walker has scheduled a Feb. 28 hearing in that case.
The motion filed Tuesday, however, indicates Moody wants to move forward with the part of the law targeting adult websites. Pornhub drew national attention this month when it said it would block people in Florida from having access to the site because of the law.
The lawsuit centers on part of the law that applies to any business that “knowingly and intentionally publishes or distributes material harmful to minors on a website or application if the website or application contains a substantial portion of material harmful to minors.” It defines “substantial portion” as more than 33.3 percent of total material on a website or app.
In such situations, the law requires businesses to use methods to “verify that the age of a person attempting to access the material is 18 years of age or older and prevent access to the material by a person younger than 18 years of age.”
The lawsuit raises objections about how the law would apply to minors and adults, including saying it “demands that, as a condition of access to constitutionally protected content, an adult must provide a digital proof of identity to adult content websites that are doubtlessly capable of tracking specific searches and views of some of the most sensitive, personal, and private contents a human being might search for.”
“As recent high-profile data leaks have revealed, no web users are safe, and hackers are often able to exploit the slightest cracks in a website’s security — however ‘reasonable’ those security procedures and practices may be,” the lawsuit said. “The inevitable result is that at least some portion of Florida adults will feel the act’s chill and forego accessing this constitutionally protected material.”
The lawsuit also alleges that the law does not properly differentiate between older minors and younger children.
“By defining material harmful to minors to include that which lacks serious literary, artistic, political, or scientific value for minors, the Florida Legislature has painted all minors, regardless of age or maturity, with a single brush,” the lawsuit said. “But there is a broad range of material that has serious value for at least some 16- and 17-year-olds which might legitimately be considered ‘harmful’ to a 10-year-old — like that concerning the risk of sexually transmitted diseases, sexual health, and the enjoyment of sex (in a state where 17-year-old minors may get married with parental consent).”
In addition to alleging violations of First Amendment rights, the lawsuit contends that the law violates due-process rights, the U.S. Constitution’s Commerce Clause, and what is known as the Supremacy Clause.
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