PIERRE, S.D. — The South Dakota state Senate Judiciary Committee on Tuesday heard testimony and debate over two competing age verification bills, in a hearing that focused largely on which piece of legislation could best withstand potential legal challenges.
The committee ultimately tabled one bill, SB 18, while moving the other, HB 1053, along to face a floor vote.
In the course of the hearing, the emphasis on constitutionality as a prime criterion demonstrated how age verification proponents’ legislative strategies are evolving and adapting in the face of recent and pending court cases.
Most notably, Free Speech Coalition et al. v. Paxton, the industry trade organization’s challenge to Texas’ AV law, is awaiting a decision from the Supreme Court on what standard of review should apply to such laws, which aim to protect minors but in the process burden adults’ access to protected speech. A lower court applied only the “rational basis” standard, whereas FSC, its fellow plaintiffs and free speech advocates maintain that the highest level of judicial review, “strict scrutiny,” must apply in such cases.
South Dakota State Representative Bethany Soye, the prime sponsor of HB 1053, told the committee, “If it’s rational basis, you know, essentially we can pretty much do any regulation we want. But if it’s strict scrutiny, that is a much higher standard. And we have to prove that there is a compelling state interest and this is the least restrictive means.”
South Dakota Attorney General Marty Jackley also advised lawmakers that anticipating strict scrutiny required them to devise a law that could hold up to the standard of using the “least restrictive means” to protect minors from viewing adult content.
‘They Just Made Up a Number’
Soye cited remarks by Supreme Court Justice Samuel Alito during oral arguments in FSC v. Paxton, as well as pending FSC lawsuits in Tennessee and Indiana, as evidence that the state should avoid one particular sticking point in advancing age verification legislation: namely, the “one third” rule that requires 33.3% of a site’s contents to be “harmful to minors” in order for the AV mandate to apply.
That rule has appeared consistently in AV bills around the country, but has raised questions in the courts and in state houses about what metrics would actually be used to determine that material harmful to minors constitutes one-third of a website’s contents, since the provisions could be interpreted to refer to anything from number of videos to file size or content hours.
That question was among concerns raised in a recent New Mexico legislative hearing on a proposed AV bill, which was found to be flawed and requiring significant revision.
The one-third rule appears in SB 18, the AV bill competing with HB 1053 at the hearing. The prime sponsor of SB 18, state Senator Steve Kolbeck, described the bill as being intentionally very similar to the Texas law.
Soye called the one-third provision “arbitrary,” noting that it originated with Louisiana’s 2022 AV law, which sparked the wave of copycat bills that has since spread to numerous states.
“We even talked to the sponsor of that bill and honestly, they just made up a number,” Soye told the committee. “And then after that, every state just blindly copied them. And I think we can do better than that.”
Critiquing the vagueness of the one-third standard and the potential loopholes it leaves open, Soye pitched her bill’s alternative approach. In lieu of the one-third rule, HB 1053 would apply to sites “for which it is in the regular course of the website’s trade or business to create, host, or make available material that is harmful to minors.”
Soye argued that the “regular course” model is much more likely to be upheld, even should the Supreme Court rule that the strict scrutiny standard applies. Rose Feliciano of TechNet, however, voiced concerns that HB 1053’s “regular course” model is too open to interpretation and could potentially capture many more websites than intended. Soye countered that both her model and the one-third rule are open to interpretation.
Soye also noted that her bill follows a different enforcement model than Kolbeck’s. Whereas enforcement of SB 18 would be triggered only when a minor actually gains access to an adult site, HB 1053 focuses on whether the site performed age verification, regardless of whether any minors actually accessed the site or not.
This is not Soye’s first effort to pass an age verification bill in South Dakota. Last year, she introduced a similar measure that was killed by the state Senate over concerns about its constitutionality, as well as technical and enforcement issues. HB 1053 represents efforts by Soye and fellow legislators to address those issues.
AV Proponents Expose Broader Anti-Porn Agenda
Among those who testified in favor of passing AV legislation was Lisa Gennaro of right-wing Christian group Concerned Women for America.
“It’s not a bill to stop adults from going to adult sites if they choose to,” Gennaro assured the committee.
Another AV proponent, however, told the committee that AV bills in other states are doing just that.
“It’s been incredibly effective,” said Doug Abraham of the App Association. “The largest porn sites in the country have stopped making their services available in some of these jurisdictions that have passed bills based on this model.”
Abraham’s remarks echoed those of numerous other backers of the current spate of state AV laws. Rep. Ben Robbins of Alabama, Sen. Keith Boehm of North Dakota, South Dakota’s own Rep. Rebecca Reimer, Nebraska state Sen. Dave Murman and representatives of groups such as the Heritage Foundation, among others, have all asserted that when adult sites withdraw completely from states with such laws, it indicates that the laws are “effective” or “working” — contentions predicated on the assumption that the goal is to prevent anyone from viewing adult content, rather than just minors.
Abraham also cited FSC’s support for device-based age verification as a reason to reject that model and insist on site-based AV.
“That’s why we think this is the best version,” he said. “If you look at who’s opposing it, you can tell who it hits the hardest.”
‘You Won’t Be Able to Hide’
One group opposing both bills was the ACLU of South Dakota — which by Abraham’s logic would seem to imply that AV legislation hits civil liberties “the hardest.”
The organization’s Samantha Chapman told the committee that not only would both bills “fail at strict scrutiny evaluation,” but they also pose threats to users.
“All means of age verification that are currently available to us today present substantial risk to anonymous web browsing and internet privacy, which will create a chilling effect on adult access to content that is legally available to them,” she said. “When you pair a scanned copy of a person’s government-issued ID with sensitive browsing data such as something that might reveal a person’s sexual orientation, pregnancy status or reproductive health decisions, you are opening up a situation that is ripe for extortion … for hackers and for thieves and for hostile foreign governments to take that data and to use it.”
“There are less restrictive means available to accomplish this goal,” she added, listing device-based blockers, internet filters and ISPs’ safe browsing and safe filters as examples that are easy to set up and mostly free.
Ending the session, the committee voted to table SB 18, advancing only HB 1053 for consideration by the full Senate.
“This is part of a national effort,” Soye declared. “As more states pass it, then hopefully eventually we will have a national standard and you won’t be able to hide in any other state.”
UPDATE: On Wednesday, HB 1053 passed the state Senate on a nearly unanimous vote, with no debate.
