Website Plaintiffs Challenge Constitutionality of Mont. Age Verification Act

Montana’s Age Verification Act, SB-544, violates the First and 14th amendments and “burdens interstate commerce,” said the Free Speech Coalition and seven plaintiff website operators and content providers in a complaint Tuesday (docket 9:24-cv-00067) against Montana Attorney General Austin Knudsen (R) in U.S. District Court for Montana in Missoula.

The act also violates the Constitution's commerce and supremacy clauses because it “impermissibly burdens Plaintiffs’ exercise of their rights thereunder in myriad ways,” said the complaint. Additional plaintiffs are Deep Connection Technologies (DCT), JFF Publications, PHE, Convergence Holdings, writers Charyn Pfeuffer and Lynsey Griswold, and psychotherapist Anna Louise Peterson.

Despite “numerous” federal court decisions invalidating several state and federal laws seeking to regulate or ban the publication of material harmful to minors on the internet, SB-544, which became law Jan. 1, places “substantial burdens” on plaintiff website operators, content creators and others by requiring sites to “age-verify every internet user before providing access to non-obscene material that meets the State’s murky definition of ‘material harmful to minors,’” said the complaint.

The act subjects to liability any commercial entity that “knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material” where “the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.” The liability is owed to “an individual for damages resulting from a minor accessing the material," including court costs and attorney fees as ordered by the court, it said. That makes the act enforceable, in the first instance, “by private actors rather than government officials,” the complaint said.

The Free Speech Coalition sues on its own behalf and on behalf of its members to "vindicate its own constitutional rights, its members’ constitutional rights, and those of the members’ respective owners, officers, employees, and current and prospective readers, viewers, and customers," said the complaint.

DCT operates O.school, a “judgment-free online educational platform focused on sexual wellness,” said the complaint. The website provides sex education it deems “appropriate (and necessary) for older minors,” it said, saying DCT opposes any age-verification measure that would preclude teens from accessing O.school’s content to learn about sex and sexuality. “DCT is confused as to what constitutes 'reasonable age verification methods'" under the act and is "concerned about the prohibitive cost of providing complying age verification protocols,” it said.

Pfeuffer is a Seattle-based writer who has written for sites that don’t contain a “substantial portion” of “material harmful to minors,” including Thrillist and Men’s Health, plus some sites that “very well might,” such as Kinkly, the complaint said. On webcam sites OnlyFans and SextPanther, “much of Pfeuffer’s content meets the statutory definition of 'material harmful to minors,'” the complaint said.

Pfeuffer is “confused as to whether her portfolio would be considered a ‘website,’ whether she would qualify as a 'commercial entity’ responsible for performing her own age-verification checks, and how she is to determine whether a ‘substantial portion’ of her writing constitutes ‘material harmful minors,’” said the complaint. The plaintiff also isn’t sure whether her webcam channel is considered a website, whether she qualifies as a commercial entity and whether she has to do her own age-verification checks “in a manner qualifying as a ‘reasonable age verification method’ on a platform operated by another entity,” it said.

JFF Publications, which operates the JustFor.Fans platform, with “erotic audiovisual works” by independent performers and producers for subscribers, is confused about what constitutes a “website” of its properties -- each performer channel, the JustFor.Fans platform or "even other platforms" it operates, said the complaint. It’s also confused “as to what constitutes ‘reasonable age verification methods’ under SB-544 and how a ‘substantial portion’ of a ‘website’s’ content is to be measured,” it said. It's also concerned about the “prohibitive cost of providing complying age verification protocols,” the complaint said.

Peterson, who has a private psychotherapy practice in Missoula, relies on internet research on transgender issues and sexuality in connection with her professional work, said the complaint. Peterson fears that as websites block access to internet users in Montana to avoid violating the Age Verification Act, she will lose access to online materials she depends on, said the complaint. The psychotherapist is also concerned about her own privacy and “objects to providing her identity to access websites that have instituted age verification protocols to comply with the Act,” it said.

Griswold, a writer and publisher focusing on pornography, feminism, and sexuality, whose work has appeared in Rolling Stone, Glamour, Playboy, McSweeney’s Internet Tendency and others, can’t now access adult websites that don’t allow access to Montana consumers to avoid violating the act, said the complaint. She’s fearful for her own privacy and objects to providing her identity to access websites that instituted age verification protocols, it said. She’s also concerned the act could “impact her ability to sell her graphic novel online,” it said.

PHE operates the Adam and Eve brick-and-mortar and online stores that sell adult toys and lingerie, publishes articles on sexual health and wellness, and sells and streams erotic movies on several websites. Each of its websites contains some material that could qualify as “material harmful to minors” under the act, but PHE can’t determine which, if any, are out of compliance because it doesn’t know what constitutes “the material as a whole” or “how it should measure the 33 1/3% threshold under which its ‘harmful to minors’ offerings must remain vis-a-vis its other offerings,” the complaint said.

Convergent Holdings, which operates as Adam and Eve Montana, has physical stores in Montana that benefit from its adamevestores.com subdomain, the complaint said. PHE publishes store-specific information such as addresses and hours of operation, plus promotions, return policies and other programs that apply to all franchise stores, said the complaint. Convergent earns royalties from sales attributable to shoppers “who arrived to adameve.com via an affiliate link posted on the franchise-specific subdomain,” it said.

AG Knudsen “is sued for prospective relief concerning his future exercise” of power and duties “to prevent his subjecting the Plaintiffs and others to a deprivation of rights, privileges, or immunities secured to them” by the Constitution and federal laws, said the complaint. The plaintiffs seek a declaration of the constitutional invalidity of the Age Verification Act and an injunction precluding Knudsen from participating in enforcement of the act, it said.

The plaintiffs ask the court to permanently enjoin Knudsen and his agents from participating in enforcement of the act and a declaration that the act violates the Constitution’s First and 14th amendments, and its commerce and supremacy clauses, making it “therefore unenforceable and void.”