National
Lessons from N.C. defeat
Did lack of money or wrong message lead to sweeping anti-gay marriage amendment?
In the week leading up to the May 8 vote in North Carolina on a proposed state constitutional amendment banning same-sex marriage and civil unions, officials with the campaign opposing the amendment said they believed they had a shot at defeating it.
āWe were on conference calls where they were saying we are in striking distance,ā said lesbian journalist and commentator Pam Spaulding of North Carolina, who publishes the LGBT political blog Pamās House Blend.
āThe campaign was saying 11 points and closing ā that we were knocking in half the gap every week that they started the final [campaign] assault,ā Spaulding told the Blade.
According to Spaulding, at an election night gathering in Raleigh, campaign leaders and volunteers who worked to defeat the amendment were stunned when the State Board of Elections announced the amendment passed by a 61-39 percent margin.
āWere their numbers that far off or did they know the numbers and were not disclosing them,ā Spaulding asked in discussing the information released by the opposition campaign to bloggers. āHow could they be 21 points off?ā
Officials with the Coalition to Protect All North Carolina Families, which operated the campaign opposing Amendment One, said the numbers they cited were from the polling firm Public Policy Polling, which showed support for the amendment down to 55 percent in the week before the election.
āThere were a lot of polls, and they were all across the map,ā said Stuart Campbell, executive director of the statewide LGBT advocacy group Equality North Carolina and a member of the opposition campaignās seven-member Steering Committee.
āWe actually had internal polling back in January that showed close to 70 percent ā around 67 to 68 percent ā in favor,ā he said. āSo we actually do believe we moved it anywhere between seven and 10 points.ā
In addition to Equality North Carolina, the organizations represented on the Steering Committee, whom officials said made all key decisions for the campaign, included the Human Rights Campaign; the ACLU of North Carolina; Faith In America; Replacements, Ltd., a gay-owned company that sells upscale dinnerware; Self-Help, an LGBT supportive credit union based in North Carolina; and Southerners on New Ground (SONG), a North Carolina group that promotes progressive causes.
In late December or early January the Steering Committee retained the Los Angeles-based Armour Griffin Media Group to produce the campaign TV ads. Officials said the campaign retained the company months before they learned that Chad Griffin, one of the two principal partners in the firm, was to be selected as the new HRC president. Campaign finance records show the campaign paid the company $66,000 for its media work as of May 11, the close of the most recent campaign finance reporting period.
Campbell and campaign co-chair Alex Miller said the campaign built important alliances with progressive groups, LGBT supportive churches and religious leaders, and leaders of the African-American community that would benefit the LGBT community for years to come.
One of the most important developments, Campbell and Miller said, was the decision by the NAACP of North Carolina to come out against the amendment. Under the leadership of Rev. William Barber II, the stateās NAACP president, the historic black civil rights organization activated its chapters in counties across the state to speak out against the amendment.
Barber told the Blade that he believes a majority of black North Carolinians voted against the amendment despite claims by some media outlets that polls showed a majority of blacks favored the ballot measure.
Ray Warren, a former North Carolina circuit court judge whoās familiar with the stateās voting trends and demographics, said a review of the vote in most parts of the state showed that all of the stateās large cities and urban areas voted against the amendment. In what he called a dramatic contrast, all of the rural counties and nearly all of the suburbs outside city boundaries voted for the amendment.
Ninety-two of the stateās 100 counties voted for the amendment. Each of the eight counties voting against it included cities or urban-oriented towns with universities within their boundaries.
According to Warren, in a development rarely seen in the state, black and white voters appeared to vote alike, with majority white and majority black precincts voting for the amendment in rural and suburban areas. In cities and urban centers, majority black and majority white precincts voted against the amendment, Warren said.
Debate over campaign message
Some LGBT supportive observers wanted to know whether the message projected by the campaign opposing the amendment in TV ads and other media amounted to the best means possible to persuade voters to reject the amendment.
Marriage equality supporter Brent Childers, executive director of the North Carolina-based group Faith in America, which challenges what Childers calls the āmisuseā of religion to deny rights to LGBT people, said the campaign could have been more effective in challenging and refuting religious arguments used to support Amendment One.
Still others, including North Carolina lesbian activist Mandy Carter, joined Spaulding in expressing concern that the opposition campaign mostly āde-gayedā its messages in TV ads by stressing the harms the amendment would have on straight unmarried couples.
Campaign officials dispute these claims, saying the campaign aggressively embraced its support for marriage equality for gays and projected that message through many campaign venues, including online videos as well as TV ads.
The campaign recruited a lesbian mother to appear in one of the three TV ads aired shortly before the election. Campaign officials told the media in a press release that the woman and her same-sex partner rely on the partnerās employee health insurance to provide coverage for their daughter.
But in the TV ad the woman isnāt identified as a lesbian. While driving a car with her child sitting next to her she says Amendment One would likely result in the loss of her daughterās health insurance.
ā[Itās] because weāre not married,ā she says in the ad, referring to her partner. The partnerās gender isnāt mentioned.
āIf youāre watching it on television thereās no way to know,ā Spaulding said, referring to the womanās sexual orientation.
Campaign officials said they believe the ad was effective in showing how the amendment would have serious consequences for unmarried couples, gay or straight, and it likely persuaded some voters to oppose the amendment.
In a series of interviews, pollsters, campaign officials, political analysts affiliated with North Carolina universities, representatives of LGBT advocacy groups, and LGBT supportive straight allies provided the Blade with a wide range of opinions addressing these questions.
Most agreed, however, that private polls commissioned for the campaign as well as polls conducted by other pollsters showed that a solid majority of North Carolinians oppose same-sex marriage on religious grounds. They noted that the same polls showed that a campaign and vote framed only around the question of whether gays should be allowed to marry would result in a certain defeat for the pro-marriage equality side.
Leaders of the Coalition to Protect All North Carolina Families said they chose an āevidence-basedā approach of using the best possible research from privately commissioned polls to develop the message they ultimately used.
That message focused on how Amendment One goes far beyond banning same-sex marriage and, among other things, would ban civil unions for gay and straight couples. It could also lead to a wide range of harmful effects on all unmarried couples, gay and straight, and their children, the group stressed in its āmessagingā campaign.
Advocates of this approach noted that an existing law in North Carolina already prohibited same-sex marriage and that an amendment to the state constitution doing the same thing was unnecessary.
Supporters of the amendment disputed that assertion, saying a constitutional amendment was needed to prevent a court from overturning the stateās existing law banning same-sex marriage. They noted that gay rights advocates had already filed at least one lawsuit challenging the existing gay marriage statute.
Political observers noted that after blocking a constitutional ban on same-sex marriage for years under Democratic Party leadership, the state legislature approved a proposal to place the issue before the voters in 2011 after Republicans gained control of the legislature for the first time in decades in the 2010 election.
Over the strong objections of many Democrats and some Republicans, supporters of the amendment worded it in a way that expanded its scope beyond just marriage.
Amendment One states, āMarriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.ā
The amendment adds, āThis section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.ā
Legal experts in the state have said the amendmentās definition of marriage as the āonly domestic legal unionā would place in jeopardy rights and benefits currently being offered to gay or straight unmarried couples, such as domestic partner benefits offered by private companies or local governmental entities like cities and towns, including health insurance benefits and hospital visitation rights.
The Coalition to Protect All North Carolina Families cited legal experts who said safeguards against domestic violence might also be jeopardized by the amendment, with the possibility that a court could no longer issue a legal āstay awayā order for a partner accused of physically abusing the other partner if the couple were not married.
āWe saw that all these terrible things could happen,ā said Stuart Campbell, executive director of the state LGBT advocacy group Equality North Carolina and a member of the Steering Committee of the campaign opposing the amendment.
Supporters of the amendment, led by the state group Vote for North Carolina Marriage and the anti-gay National Organization for Marriage, said claims that the amendment would impact health insurance benefits, domestic violence protections or child custody rights were unfounded.
Campbell said the Coalition to Protect All North Carolina Familiesā Steering Committee initially hired the LGBT supportive polling firm Greenberg Quinlan Rosner Research headed by pollster Anna Greenberg. In an effort to get a second opinion, the Steering committee a short time later retained Lake Research Partners, another LGBT supportive campaign research firm headed by pollster Celinda Lake. Both firms have long-established records of helping to win elections for mostly Democratic candidates and progressive causes.
Lake was the pollster in the 2006 campaign opposing a proposed same-sex marriage ban in Arizona that was defeated by voters, the only such ballot measure to lose in more than 30 states across the country that voted on such a measure. Observers said the measure lost in Arizona because most voters disagreed with the additional restrictions it would place on unmarried couples, similar to the āharmsā cited by opponents of Amendment One in North Carolina.
Two years later, Arizona voters approved a same-sex marriage ban that didnāt include the additional restrictions on unmarried couples.
Lake told the Blade that the North Carolina campaign stressed the harms Amendment One would cause to gay and straight unmarried couples, including the children of such couples, but it was not modeled directly after the Arizona campaign since the two states have different voter demographics and political traditions.
Lake said her early polling in North Carolina conducted to test different messages clearly found that a message of the potential harm Amendment One would cause for unmarried couples, gay and straight, children of these couples, and women threatened by domestic violence resonated with many voters. Among other things, a significant number of voters who planned to vote for Amendment One changed their position and stated in her poll that they would vote against it after learning about the amendmentās impact beyond banning same-sex marriage, Lake said.
Lake described as historic the North Carolina campaignās use of a TV ad asserting that Amendment One would harm children, saying it represented the first time a campaign opposing a ballot measure seeking to ban same-sex marriage has argued that such a proposal would harm children.
She noted that in all previous campaigns, supporters of anti-gay ballot measures argued that same-sex marriage would be harmful to children. In North Carolina, the campaign against the amendment turned the tables on the anti-marriage equality forces, opening the way for this āgame-changingā strategy in future battles against ballot measures seeking to ban same-sex marriage, Lake said.
When asked why Amendment One passed by a 61 percent to 39 percent margin despite the use of the āunintended consequencesā and harm to children strategy, Lake and others working with her on the campaign cited the campaignās lack of sufficient funds to pay for more TV ads and their inability to begin airing the ads sooner.
Jeremy Kennedy, the campaign manager hired by the coalition Steering Committee to carry out the committeeās game plan, said more than 60 percent of the $2.8 million raised by the campaign came in during the last few weeks leading up to the May 8 election.
The three TV ads the campaign used didnāt begin airing until the stateās early voting had already started about 15 days prior to Election Day.
āI was surprised that the opposition campaign didnāt get on the air sooner,ā said Wake Forest University political science professor John Dinan, who said he followed the campaigns for and against the amendment.
āTo move voters you need to put on TV ads much sooner,ā he said.
Kennedy said that in the last few weeks of the campaign, donors began to respond when some outside polls, including those conducted by the firm Public Policy Polling, showed the projected vote for the amendment dropping to about 55 percent.
āIf we all had our way and we had early money we would have done several months of TV,ā Kennedy said.
Kennedy, 34, is a native of Texas who moved to D.C. in 2007 to work on the presidential campaign of Hillary Clinton. After Clinton dropped out of the presidential race following the primary season in 2008, Kennedy took a job with the Human Rights Campaign’s field department in Washington.
In 2010 he moved to Maine to work on the gubernatorial primary campaign of Democrat Elizabeth “Libby” Mitchell, who won the primary but lost the general election to Republican Gov. Paul Lepage. Following that campaign, Kennedy went to work as a state field director for the Maine Democratic Party.
He next went to Rhode Island to work on the legislative effort in the state to pass a same-sex marriage law. The legislature changed course and approved a civil unions bill rather than a marriage law. Shortly after returning to Maine, which he considers his home state, Kennedy was recruited to North Carolina last December, whereĀ the Coalition to Protect All North Carolina Families hired him as campaign managerĀ toĀ work for theĀ defeat of Amendment One.
One source familiar with the campaign said the Steering Committee awarded Kennedy a $5,000 bonus near the end of the campaign. Another source expressed concern that money for the bonus would have been better used to pay for additional media ads.
Campbell declined to confirm the amount of the bonus, saying it was a personnel matter that would not be appropriate to discuss publicly. However, he added, āIt was not such a large amount that it would make a difference in the media campaign.
āI have nothing but good things to say about Jeremy,ā Campbell said. āI think he did an excellent job. He ran the campaign that we hired him to run.ā
HRC spokesperson Fred Sainz agreed with Campbellās assessment of Kennedy.
āIn everyoneās estimation ā including ours ā Jeremy Kennedy is a superstar!ā Sainz said in an email to the Blade. āThis campaign brought together a diverse coalition that left behind an infrastructure in North Carolina upon which we can build upon for progressive politics and gay rights.ā
Sainz said that while the loss was a big disappointment, ballot measures banning same-sex marriage passed in the other Southern states by an average of 75 percent in past years. He said the 61 percent to 39 percent margin of approval of a gay marriage ban in North Carolina shows āamazing progress among Southerners and Americans in general on the issue of marriage equality.ā
Approval by voters in Virginia of a state constitutional ban on gay marriage in 2006 by a margin of 57 percent marked the only Southern state with support for such an amendment at a lower percentage than North Carolina. Florida passed such an amendment with a margin of 62 percent in 2008. South Carolina approved a marriage ban amendment by a 78 percent margin of approval in 2006.
Campbell and campaign co-chair Miller said reports by some critics that the campaign ended with a significant surplus and that the campaign chose not to distribute yard signs to urge voters to defeat the amendment were not true.
The campaign distributed as many as 15,000 yard signs opposing Amendment One in mostly urban areas throughout the state, campaign officials said.
Miller said that the campaignās finance report filed on May 21 showing a $92,317 surplus was based on incomplete data. Bills for media-related expenses and other expenditures had yet to be paid at the time of the reportās filing deadline. He said final expenses would be shown in a final, end-of-the-year report to be filed with the election board.
āWe were pretty much down to the last penny,ā he said of the campaignās spending.
āMood is grimā
A 17-page memo that Greenberg sent to the campaign Steering Committee on Dec. 6, 2011, a copy of which the Blade obtained, says her polling found that a significant number of voters were inclined to change their vote from āyesā to ānoā on the amendment after they learned of the potential harmful impact it would have, including its prohibition against civil unions and overall harmful effects on children.
Greenberg noted in her memo that many voters who opposed same-sex marriage did not object to civil unions for gay or straight couples.
But unlike Lake, Greenberg stated the overall prospects for defeating Amendment One were not encouraging even when the āunintended effectsā were spelled out to prospective voters.
āThe mood is grim ā and conservative ā in North Carolina,ā she said in the memo. āNorth Carolina shocked the country by delivering its electoral votes to Barack Obama in 2008. The world has since turned,ā she wrote in the memo. āHalf of this (special) electorate describes their feelings toward Obama in negative terms,ā she added in discussing her poll findings.
A source familiar with the campaign, who spoke on condition of not being identified, said Greenberg made it clear she didnāt think a victory was possible for the opposition side. Instead, she recommended the campaign adopt a strategy that would educate voters and help their opinions in favor of marriage equality for a future campaign, the source said.
āWe would not complicate this issue with a discussion of the impact this would have on straight, unmarried couples, despite the Arizona experience,ā she wrote in her memo. āVotersā moral judgment is not expended entirely on the LGBTQ community as voters here have problems with unmarried straight couples living together as well. An additional focus on straight couples does not make enough difference to justify muddying up your message,ā she said in the memo.
She said her memo was based on a survey of 600 likely special election voters in North Carolina taken Nov. 16-21, 2011. She said her poll, which had a margin of error of plus or minus 4 percent, found that 66 percent of the voters surveyed supported Amendment One, with 30 percent opposing it.
āMore information and messaging reduced down the margin so by the end of the survey the support side leads by 24 points (59 percent favor, 36 percent oppose),ā she said of the poll.
Greenbergās adjusted poll numbers, reflecting the āmessagingā that opponents used in the campaign, came close to the 61 percent to 39 percent outcome of the election nearly six months later.
Similar to Lake, Greenberg noted in her memo that opponents of Amendment One would need to invest in an extensive media campaign to educate voters of the harms the amendment would likely cause LGBT people and others.
Kennedy told the Blade that despite the fact that the campaign came close to meeting its $3 million fundraising goal, far more money was needed to educate voters that polls showed would switch from support to opposition of the amendment if they knew it went beyond just banning same-sex marriage.
Rev. Barber of the NAACP said the media were partially responsible for the lack of voter education.
āThe folks who brought this forward framed it on whether you support gay marriage on religious grounds,ā he said. āAnd the media fell for this. They should have made it clear that this was a constitutional amendment that would take away rights.ā
He added, āThe NAACP saw a dangerous pattern. We saw the rights of a minority being put up for a popular vote. The media never asked the right questions.ā
Childers of Faith In America said he attempted but did not succeed in persuading the campaign to directly respond to attacks against same-sex marriage by religious groups and leaders. He said Faith In America, which was co-founded by gay businessman Mitchell Gold, believes the opposition vote would have been considerably higher if the campaign addressed the religion issue āhead onā in TV and other media ads.
Childers noted that the campaign opposing the amendment, among other things, should have responded to religious leadersā claims that same-sex marriage is against Godās will. The Rev. Billy Graham was among the religious leaders in the state to come out for the amendment.
When told that sources familiar with the campaign said campaign officials were reluctant to question or challenge votersā religious beliefs, Childers said, āThatās one of the fallacies that frankly our own community have fallen prey to. Any person that has spent much time at all in a religious environment knows that religious teachings are questioned all the time,ā he said.
āIf you look at the voice of history it is crystal clear when it comes to misuse of religious teachings to justify prejudice and discrimination against minorities,ā Childers said. āWe have concluded as a society on a number of occasions that that is simply a moral failing as a society.ā
U.S. Supreme Court
Supreme Court declines to hear case over drag show at Texas university
Students argue First Amendment protects performance
The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.
The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.
When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.
The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows āderisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”
The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that āit is not clearly established that all drag shows are inherently expressive.”
Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on ātext, history and tradition.”
Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.
Federal Government
EXCLUSIVE: USAID LGBTQ coordinator visits Uganda
Jay Gilliam met with activists, community members from Feb. 19-27
U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.
Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.
Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.
Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.”
“I really wanted to meet with community members and understand the impacts on them,” he said.
Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.”
The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.
“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.
“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.
Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.
“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.
Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.
Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.Ā Ā
US sanctioned Ugandan officials over Anti-Homosexuality Act
The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.
The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act āfurther increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.ā The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act.
Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.
Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act.
Gilliam noted authorities have arrested and charged Ugandans under the law.Ā
Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.
The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.
“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”
The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.”
“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.”
Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.
“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.
Texas
Pornhub blocks Texas accessing site over age verification law
Court battle forced statute to take effect
Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.
Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.Ā
A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā
āApplying rational-basis review, the age-verification requirement is rationally related to the governmentās legitimate interest in preventing minorsā access to pornography,ā the three judge panel of the 5th Circuit explained. āTherefore, the age-verification requirement does not violate the First Amendment.ā
While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtās injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements.
The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as āineffective, haphazard, and dangerous.ā The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.
Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.
The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMVās Wallet app, which contains a mobile driverās license.
Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateās digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driverās licenses or other methods.
The Associated Press reported this past October that an adult entertainment groupās lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.
Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.
āAs you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.ā
āMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā the statement continues. āAs weāve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā
āUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā the message ends with.
The company previously blocked Utah on May 7, 2023. CNN reported at the time:
Affected users are shown a message expressing opposition toĀ Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.
āAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā the message said. āWhile safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.ā
Courthouse News reportedĀ that after Virginiaās bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.Ā Ā
āWe passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,āĀ Lucas saidĀ on X, formerly Twitter. āWe will continue our work to keep pornography out of the hands of minors ā¦ but we will also work to ensure that this Governorās error does not put the privacy of Virginians at further risk.ā
Beyond the U.S. in the European Union, Pornhub and two more of the worldās biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUās Digital Services Act.
According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as āvery large online platformsā subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EUās executive branch.
They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.
In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.
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