Comment | US digital age verification laws are threatening artists’ freedom of expression
Is your art safe for a child to see? If a third of the content your website hosts could be deemed “harmful to minors” by US lawmakers, you may be at risk of legal action. So far, 22 states have passed age verification (AV) legislation requiring websites that host “harmful” content to implement a variety of expensive and invasive systems to verify the age of every visitor, and many artists could soon be subject to those requirements.
These laws have emerged as a facet in the moral panic sweeping through the US that has targeted topics that conservative ideologues see as “harmful to children” including drag shows, certain children’s and young adults’ books and diversity, equity and inclusion (DEI) initiatives. What makes these AV laws especially threatening to freedom of expression, though, is their reach: regardless of where in the world a website is based, it could face legal consequences from states, criminal charges or even private lawsuits (“civil litigation”) simply for being accessed by a child in a US state with such a law on the books.
Earlier this year the organisation Fight for the Future released a letter signed by more than 100 digital rights, human rights and privacy groups expressing concern over the rise of AV laws. The letter accuses states of using “child safety” as a pretext to decide what content is “appropriate” while endangering young people and marginalised groups by requiring them to upload personal information vulnerable to data breaches or law enforcement access. It also criticises the vagueness of the phrase “harmful to minors” and the arbitrary one-third content threshold, noting that most AV laws define harm almost exclusively as depictions of nudity and sexuality—and, in a number of cases, “homosexuality”.
These laws have been framed as measures to protect children from pornography, but that obscures their broader impact on the adult industry and on the arts. “Don’t assume this is just about Pornhub,” Mike Stabile, the public policy director for the Free Speech Coalition, tells The Art Newspaper. “The groups who are pushing this legislation are often the same ones who attacked [the work of] Karen Finley, Robert Mapplethorpe, Andres Serrano, Ron Athey, Sally Mann, Jeff Koons, R. Crumb, David Wojnarowicz and hundreds of others.”
Flags in the firing line
Recent attempts to “protect children” from art that depicts nudity have ranged from Michelangelo’s David to Mann’s portraits and even Virginia’s state flag. But online, artists have long dealt with punitive restrictions, limited visibility and algorithmic bias affecting their ability to show and promote their work. AV laws present a new and dangerous threat to both artists and viewers. Elizabeth Larison, the director of the National Coalition Against Censorship’s Arts and Culture Advocacy Programme and a member of Don’t Delete Art, tells The Art Newspaper that “for millennia, art has taken inspiration from the human form, and online, nudity is often wrongly conflated with sexuality; this means that websites of artists and museums may face the administrative burden of employing age verification mechanisms and only those who submit their identities may be allowed to view them, if at all. This not only wrongfully stigmatises a whole swath of art, but also leaves states in power of deciding what kind of content is ‘harmful’.”
To be sure, artists and museums may be able to challenge these laws. “A museum or an artist might very well believe—and be justified in arguing—that they have First Amendment protections,” Stabile says. “But you still have to go to court. These are harassment suits that can be brought by anyone against you.” Freedom of expression could, in theory, be successfully defended, but the prohibitive cost goes a long way to achieving the end goal of any censorial regime: self-censorship. Stabile adds: “The goal is to encourage self-censorship by creating liability around sex, sexuality and gender.”
Children face real and complex threats online, including privacy violations, bullying, sexual exploitation and manipulative algorithms. The growing call for their protection is one that many governments are responding to and that many artists who are at risk from overreaching AV laws recognise as urgent.
“I support the protection from harm to young people through online content. I know the damage that it can cause,” says the British painter Helen Beard. “But at the same time I think the age verification proposals will impact on legitimate and non-harmful content such as mine, which explores human love and female sexuality that may seem subversive to some but could in no way be deemed to be harmful.”
Historically, rushed internet regulations intended to protect vulnerable communities have often backfired, sending bad actors deeper into darker parts of the internet and increasing harm through censorship. As such, those who are most at risk from the bad effects of legislation such as AV laws are rightfully sceptical of the intentions and wary of the effects. The artist Leah Schrager, who has used themes of sexuality in her work to comment on social media and the male gaze, is one such sceptic. “History shows that clamping down on creators’ online presence hurts countless artists while failing the very people these laws claim to protect,” Schrager says. “These rules aren’t about safety—they’re designed to shackle artists and creators, and limit bold, boundary-pushing work.”
As AV laws continue to be implemented in the US and beyond, groups like the Free Speech Coalition are pushing back, even arguing against such rules before the US Supreme Court earlier this year.
“We can turn the tide,” says Ricci Levy, the president and chief executive of the Woodhull Freedom Foundation. “We must be loud and make our concerns known with these local bills to keep them from scaling nationally.”
Laws that threaten free expression and privacy online are on the rise, and artists and users alike need to become aware of the risks. Levy adds: “Once we’ve allowed the elimination of the First Amendment and given up all pretence of privacy by providing our identifying information, it’s just a few short steps to a world where we only get to see, read, listen to and learn what the government approves for us.”
