Adults have a First Amendment right to look for and access information online, including sexual content.
But House Bill 1053, a bill aimed at limiting minors’ access to online content, would require people to undergo an invasive age verification process before accessing adult content online. The bill will be debated in the House State Affairs Committee tomorrow morning.
The ACLU of South Dakota opposes House Bill 1053. Requiring age-verification for porn and other sexual content on specific sites won’t save children from online harm. But it will invade the privacy and violate the constitutional rights of all South Dakotans.
“Efforts to childproof the internet not only hurt everyone’s ability to access information, but also give the government far too much leeway to go after speech it doesn’t like — all while failing to actually protect children,” said Samantha Chapman, ACLU of South Dakota advocacy manager. “Allowing the government to restrict access to sexual content will inevitably lead to more censorship and a more restricted internet for everyone. Young people deserve our protection and support, but age-gating the internet is not the answer.”
Defining sexual material that is “harmful” to minors — and even what counts as “obscene” for adults — is notoriously difficult to do. That vagueness is also easy to abuse. Over the years, everything from books with LGBTQ+ characters to reproductive health information have been mislabeled by some as “obscene” and dangerous for minors to consume – not to mention that House Bill 1053 doesn’t even reach social media and search engines, the places where minors are most likely to encounter explicit content.
Additionally, there’s no way to check ID online just for minors. Unlike in-person ID checks, online age verification exposes every website visitor to privacy and security risks. That means it seriously burdens the rights of adults to read, get information, speak and browse online anonymously.
“Records of our personal information tied to details of the adult content we watch, sexual questions we have, or interests or identities we’re exploring could make millions of people vulnerable to harassment, blackmail and exploitation,” Chapman said.
The ACLU consistently fights against laws that purport to protect kids, but ultimately censor and chill speech. The Supreme Court has ruled that states can restrict a minor's access to adult material, but legislators must navigate a delicate balance mandated by the U.S. Constitution. The law cannot inhibit a minor's access while simultaneously burdening an adult's right to access the same material. In a precedent-setting case, Reno v. ACLU, the courts deemed age verification requirements were unconstitutional when a less restrictive alternative exists. For example, the voluntary installation of parental control filters.
Earlier this week, the United States Supreme Court heard arguments in Free Speech Coalition v. Paxton, a challenge to a Texas law that, like House Bill 1053, requires people to undergo an age verification process before accessing sexual content online. A decision in the case is expected by early summer 2025.
In addition to House Bill 1053, Senate Bill 18 would also mandate age verification before people can access a website with “materials harmful to minors.”
About the ACLU of South Dakota
The American Civil Liberties Union of South Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of South Dakota is part of a three-state chapter that also includes North Dakota and Wyoming. The team in South Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ+ and Two Spirit communities. The ACLU of South Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of South Dakota.
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