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House Bill (HB16), proposed by Rep. Ben Robbins, R-Sylacauga, will soon be heard by the Senate Judiciary Committee. It is imperative that lawmakers understand why his bill is bad for Alabama.
A review of HB164 reveals a measure to implement “reasonable” age verification requirements that providers of online porn must follow if they have users from local IP addresses.
If a company that owns a platform regulated by HB164 fails to comply with the law, they could be sued and fined for large sums of money. Robbins’ bill operates on a faulty claim of constitutionality.
HB164 is similar to the age verification statute implemented in Texas, which has been mired in litigation for months. Pornhub, the popular adult tube site owned by the Canadian company Aylo, made national headlines when it geo-blocked all IP addresses from Texas. Anti-porn activists and far-right Republicans lauded this announcement due to a recent ruling handed down by the U.S. Fifth Circuit Court of Appeals as it relates to a federal lawsuit filed by a plaintiff class of adult industry stakeholders, including Aylo.
The plaintiffs took issue with the Texas law due to not only the age verification requirements but also the fact that the bill sponsors required adult websites to publish so-called public health labeling on their websites as if they were sites for electronic cigarettes, a beer company, or a popular brand of whiskey.
There is absolutely no scientific or medical consensus that suggests that viewing pornography is a public health crisis. In HB164, the bill does just that. The first few paragraphs of the bill reaffirm the Alabama legislature’s position that porn is a threat to public health.
This is an ideological pantomime given the fact that the vast majority of major public health groups don’t recognize pornography as such a crisis nor as a potential addiction that would require treatment.
The American Psychiatric Association has not named porn addiction to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Any perception of addiction is often associated with feelings of deep guilt brought on by repressive spiritual and political environments experienced by individuals.
If it were to become law, Robbins’ bill would compel private companies to publish speech that would begin with labels featuring language such as:
“Alabama Health and Human Services Warning: Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.”
Other labels in the bill ostensibly link pornography consumption to mental and substance abuse issues by requiring porn sites to provide the phone number to a mental health helpline for the federal Substance Abuse and Mental Health Services Administration. This agency doesn’t recognize porn addiction or treat it. On a similar note, journalists like myself queried the Texas Health and Human Services Commission several times, seeking clarification as to why the sponsors of the Texas bill would use the endorsement of the state’s chief public health agency. In one response to my queries, a spokesperson for the Texas HHS referred me to ask the bill sponsors or the office of far-right Texas Attorney General Ken Paxton.
The sponsors of the Texas bill, before it became law, aren’t medical doctors or public health experts. Also, Alabama doesn’t have a Department of Health and Human Services. Do note that a federal district judge in Austin, Texas, found that the Texas age verification law violated the First Amendment rights of adult entertainment websites and the users of those websites. The same judge also found that the state violated the rights of the companies by compelling them to publish speech that wasn’t widely accepted as factual.
The standard the judge cited was the Zauderer test, indicating that a private company’s First Amendment rights weren’t violated if the government had evidence consistent with scientific and medical consensus to be accurate. A Surgeon General’s warning found on cigarettes or a can of beer is an example of widely accepted factual information based on evidence. The judge issued a preliminary injunction blocking the law. Texas appealed to the Fifth Circuit. The Fifth Circuit sided with the porn companies that health labels are unconstitutional. While the Fifth Circuit declared age verification constitutional in the case of Texas, the decision wasn’t unanimous. The dissenting judge accused the two majority judges of dismissing years of case law established by other federal courts and, chiefly, the U.S. Supreme Court. The high court held in Reno v. ACLU that segregating online content by age violated the First Amendment right to free expression.
Granted, the high court in this case provided for a “least restrictive means” to verify the age of an online porn user, but current instruments for age verification proposed in most states are overly restrictive.
What worries me the most is that Rep. Robbins is a lawyer. He recognizes the risks of potential litigation and, importantly, a potential loss. Instead of seeking the contributions of adult entertainment companies and other potentially regulated platforms, he wants to recreate the wheel as it relates to porn regulations.
The Robbins bill would require adult companies to register with the state of Alabama. And when I mean register, any online platform that operates within the state of Alabama’s digital space must retain the age and consent records of any individual who appears in a pornographic video or image for a minimum of five years for inspection at any time by Alabama law enforcement officials. Barring the intention of this measure, the federal government and the Department of Justice already require this, and the vast majority of adult entertainment companies — even those based outside of the United States — openly comply.
Registering with Alabama would also create a special tax roll for adult companies, charging a 10 percent levy to fund the state’s already underfunded mental health agencies. Most of these aren’t new tactics.
In 1986, then-Attorney General Edwin Meese released a report by a commission on pornography and obscenity he convened, which alleged that pornography is a hazard to public safety and health.
The so-called “Meese” report was heavily criticized. For starters, the commission wasn’t made up of members of the adult entertainment industry at the time – mainly law enforcement, a Roman Catholic priest, a right-wing constitutional law expert who didn’t view porn as protected by the First Amendment.
Doesn’t this sound like a familiar tactic? This is where the present-day anti-pornography movement gets its tactics – and ammunition. The so-called Meese report relied on overtly skewed assessments of sexual expression steeped in deep Christian nationalist thought. In fact, the Meese Commission superseded its legally permitted authority. Alan Sears was the commission’s staff executive director. He used letterhead from the commission, under the purview of the Reagan-era Department of Justice, to send threatening letters to the heads of 23 different private companies threatening to list them in the final version of the report. Companies were not only outraged, but some were frightened, fearing potential prosecution for crimes that, chances are, they weren’t committing: obscenity violations. Sears’ actions—among a variety of other actions taken by the commission—resulted in several companies, trade groups, and the publisher of Playboy suing the commission and the Reagan administration for violating First Amendment rights.
The judge in the case Playboy v. Meese told the commission that it could not do these things, made Mr. Sears withdraw the letters, and prohibited the publication of a list in the final version of the Meese report.
It was revealed that such a list was compiled by the far-right Christian nationalist Donald Wildmon, founder of the American Family Association (AFA). Note that Alan Sears went on to establish another well-funded far-right conservative Christian group called the Alliance Defending Freedom, and Edwin Meese sits on the board of trustees at the Heritage Foundation. All three of these groups are a part of the Project 2025 initiative. In my last column for Alabama Political Reporter, I described how Project 2025 — coordinated primarily by Heritage — is an astroturfing campaign of social conservatives and think tanks tied to multi-billion-dollar corporations looking to install a cabinet of ideological-friendly yes-men for the potential return of former President Donald Trump to Washington, D.C. and the White House.
The American Family Association and the Alliance Defending Freedom are classified by the Southern Poverty Law Center as anti-LGBTQ+ hate organizations. As I also noted, Heritage Foundation president Kevin Roberts wrote in Project 2025’s central policy treatise, Mandate for Leadership, that he believes pornography and LGBTQ rights are one and the same and that material he views as porn isn’t entitled to the protections of the First Amendment. Roberts even called for “pornographers” to be imprisoned.
Alabama has the opportunity to break the mold. Lawmakers in this state still have the chance to protect the rights of people and groups that number in the millions and transcend state and national boundaries. House Bill 164 would further damage Alabama’s national standing and would bring with it legal battles.
