Photo by Christin Hume via Unsplash
A measure claiming to protect children from adult websites, which recently became law in Kansas, could potentially block minors from viewing any LGBTQ content.
The law, passed by the Republican-led State House of Representatives and Senate, requires websites that feature content “harmful to minors” to verify that visitors in Kansas are 18 or older.
To verify their age, visitors to such websites would have to provide their government-issued IDs.
Under the bill, any website in which 25% or more of its viewed pages in any month contain “material that is harmful to minors” is required to verify the age of visitors from Kansas.
Adults who are not asked for their government ID and personally identifiable information can report any noncompliant websites to the attorney general’s office.
The attorney general would then investigate and could seek penalties ranging from $500 to $10,000 for each underage visit to the site.
The bill also allows parents or guardians of minors who access such sites to file lawsuits and seek damages of $50,000 or more against companies, regardless of where they are located, who failed to adequately screen minors using commercial identity verification software.
Before passing the bill, Republicans and other supporters of the measure largely focused on explicitly pornographic sites or those containing descriptions, depictions, or representations of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, often saying that “reasonable people” can determine whether such content may be “harmful to minors.”
However, as noted by the Kansas Reflector, one of the advocates for the bill was a mother who was outraged at an advertisement for Britney Spears’ memoir, which features the singer topless with her hands covering her breasts — which some people, including other parents, might not believe rises to the same level as explicit pornography.
Furthermore, LGBTQ advocates say, under Kansas criminal law, “sexual content” is defined in part as “acts of masturbation, homosexuality, or sexual intercourse” — meaning that any non-pornographic site that references LGBTQ people, same-sex attraction, or homosexuality, or caters to an LGBTQ audience — could be sued under the extremely broad law.
As opinion editor Clay Wirestone noted in an op-ed in the Reflector, the law is open to broad interpretation.
Quoting Max Kautsch, a Lawrence, Kansas-based media lawyer, Wirestone wrote that, under some interpretations of the existing criminal law, “acts of…homosexuality” could be argued to include “a wide swath of conduct between two persons of the same sex, including kissing, hand-holding, and other activities that would be considered ‘public displays of affection.’”
The bill exempts nonprofit organizations from being sued but does not expressly exempt news outlets that report on LGBTQ-related issues. Rather, the bill simply allows for any “commercial entity,” defined as “a corporation, partnership, limited liability company, limited liability partnership, limited partnership, sole proprietorship or any other for-profit organization” to be sued for failing to screen the ages of Internet visitors from Kansas.
As noted by Wirestone, “The proposed law applies to ‘any commercial entity’ that shares content online, which means it could sweep up individuals trying to make money from a travel blog or small businesses that take wedding photos of same-sex couples.”
Similar laws have been passed in Texas, Arkansas, Indiana, Louisiana, Mississippi, Montana, Utah, and Virginia, although most of those laws contain exemptions for news outlets. That said, adult websites like Pornhub have blocked visitors from some of those states due to their refusal to “card” visitors to prove their identity, which the website argue violates users’ privacy.
Kansas Gov. Laura Kelly, despite vetoing a statewide ban on gender-affirming care for minors, allowed the bill to become law without her signature, despite concerns expressed by some opponents that the measure would be broadly interpreted with respect to what constitutes “adult content.”
She even acknowledged that the bill could be unconstitutional depending on the way the law is interpreted.
“While well-meaning in its efforts to protect children from content the legislature considers ‘harmful to minors,’ this bill is vague in its application and may end up infringing on constitutional rights, which is an issue being litigated in other jurisdictions over similar bills,” Kelly said in a statement released by her office. “For that reason, I will allow this bill to become law without my signature.”
“Because a statute defining what is harmful to minors is so subject to interpretation, I don’t think you’re ever going to find someone who can say with certainty what is allowed and what is forbidden,” Kansas State Rep. John Carmichael (D-Wichita) told the Kansas City Star newspaper. “You’ll find one judge who says it’s allowed, another who says it’s forbidden and that it’s a crime, and anothr who would call it English literature.”
Of course, the easiest solution to any confusion would be to clean up Kansas’s laws to remove “homosexuality” from the definition of “sexual content.” However, given the Kansas Republican Party’s historic opposition to LGBTQ rights, unless House and Senate leadership explicitly sign off on such a change, any proposal to remove homosexuality from the criminal statute is unlikely to gain traction in the GOP-dominated legislature.
