Legislation places attorney general in charge of enforcement; legal challenges likely
TOPEKA — Katie Scarlett Calcutt was browsing a website at the Topeka-Shawnee County Public Library with her 9-year-old son when an advertisement for Britney Spears’ memoir appeared on the computer screen with an image of the topless entertainer using hands and arms to conceal a portion of her body.
Calcutt said she was offended by casual availability on an internet website of what she considered pornographic images harmful to minors.
“I thought I was safe showing a public library website to my son,” she said. “He was visibly disturbed. I felt violated. If this misjudgment occurred on a public library website, I am scared to imagine how the savvy entertainment industry, and worse, the extremely profitable and inhumanly exploitive porn industry, can find their way to the attention of my relatively sheltered son.”
She said in testimony to the Kansas Legislature that lawmakers should create in law a financial disincentive for businesses to capitalize on vulnerability of children.
Bills pending in the House and Senate would allow parents or guardians of anyone under 18 gaining access to online pornography to file lawsuits and seek damages of $50,000 or more against companies that failed to screen minors with commercial identity verification software. The proposed age-verification requirements would apply to consumers in Kansas accessing content offered globally.
The mandates in Senate Bill 394 introduced by Salina Sen. J.R. Claeys and House Bill 2592 sponsored by Wichita Rep. Patrick Penn would apply to websites in which at least one-fourth of the site’s viewed pages in any month contained descriptions, exhibitions or representations of nudity, sexual conduct, sexual excitement or sadomasochistic abuse.
The legislation would authorize Attorney General Kris Kobach to investigate reports of noncompliance and seek injunctions and civil penalties against alleged violators ranging from $500 to $10,000 for each underage visit to a pornographic site. A minor who eluded age verification software to access pornography wouldn’t be fined or otherwise held accountable under the legislation, nor would an internet service provider be subjected to penalty when a minor consumed online pornography.
The attorney general’s office requested at least $210,000 annually to administer the proposed law, but said there was no way to anticipate the cost of defending the state against likely legal challenges.
Carl Czabo, general counsel to the trade association NetChoice, said enactment of the legislation in Kansas would invite constitutional challenges for violation of the First Amendment. Adoption of the legislation could weaken parental oversight of children and undermine technological innovation useful to keeping kids safe online, he said.
“The bill represents a major government incursion into the traditional role that the family has played in Kansas and American history,” Czabo said. “Parents are the best stewards of their own children. Not the state.”
Ruthie Barko, executive director of Colorado and central United States for TechNet, said the bipartisan network of technology CEOs and senior executives recommended the Kansas bill be amended to model the framework adopted in 2022 by Louisiana. The legislation before Kansas lawmakers, Barko said, was overly broad and capable of snaring private companies that didn’t publish or distribute harmful content to minors.
“Our members are committed to online safety and work very hard to give users the tools to create the online experience that fits their needs,” Barko said. “An educated consumer armed with technology is always the best protection against unwanted online interactions.”
Chuck Weber, executive director of the Kansas Catholic Conference, endorsed the legislation and argued consumption of nudity or sexual content, particularly by children, was unhealthy. The state government should take a stand against the pornography industry for addicting youth to smut, he said.
“It’s addictive, it’s destructive and it’s just one click away from our kids on their phones,” he said. “While parents are the first and best defenders of their children, society also has an obligation to protect the family, what we often call the ‘domestic church.'”
Iain Corby, executive director the Age Verification Providers Association, said in testimony streamed from London that the association supported the effort in Kansas to intervene. He said the proposed Kansas law would survive constitutional challenge and adult consumers of online pornography would remain free to conveniently access that material without unreasonable cost.
He recommended the legislation be amended to give state regulators authority to block essential business services, including advertising, payment and hosting, from noncompliant companies. Some of the world’s largest pornography websites were based in Europe and could be beyond the reach of a Kansas court injunction or financial judgment.
Brittany Jones, an attorney with the advocacy organization Kansas Family Voice, said pornography should be kept from children because research showed it altered human brains in ways comparable to changes produced by addiction to cocaine, alcohol and methamphetamines.
She said children had no constitutional right to view pornography and eight states had adopted laws comparable to what was proposed for Kansas.
“As the internet has grown, so has access to material that is harmful to children,” she told legislators. “Even the most dedicated parents struggle to protect their children from this predatory industry. That is why it is vital that this body take action and protect our children online.”