Corey D. Silverstein

Today, the United States Supreme Court issued its long-awaited opinion in Free Speech Coalition v. Paxton, a landmark case addressing the constitutionality of Texas’ age-verification law targeting adult content online. In a closely watched decision, the Court ruled in favor of Texas. Background The case arose from a Texas law requiring all publishers of online adult content to implement stringent age-verification mechanisms to prevent minors from accessing such material. The Free Speech Coalition (FSC), a trade association representing the adult entertainment industry, challenged the law as a violation of free speech rights and a form of compelled disclosure. Lower courts had been divided on the issue, prompting the Supreme Court to grant certiorari to resolve the constitutional questions at stake. The Court’s Ruling In an opinion authored by Justice Clarence Thomas, the Court held that H. B. 1181 triggers, and survives, review under intermediate scrutiny because it only incidentally burdens the protected speech of adults. What’s Next Silverstein Legal is actively analyzing the implications of this decision for our clients operating in the digital content and media industries and the future of age verification in the United States. For more information or to discuss how this ruling may affect your…

On April 28, 2025, the U.S. House of Representatives overwhelmingly passed S. 146, the TAKE IT DOWN Act, following unanimous Senate approval in February. The bill, formally titled Tools to Address Known Exploitation by Immobilizing Technological Deepfakes On Websites and Networks, now heads to President Donald Trump's desk for signature, where it is expected to become law with strong bipartisan support and endorsement from First Lady Melania Trump. This landmark legislation addresses the growing harms posed by both authentic and synthetic nonconsensual intimate images (NCII). It establishes new criminal penalties and imposes civil obligations on online platforms to swiftly remove flagged NCII content. Key Provisions: Criminal Liability Offense: Knowingly publishing authentic or synthetic NCII without consent is now a federal crime. Penalties: Up to two years' imprisonment for publishing NCII of an adult. Up to three years' imprisonment if the NCII depicts a minor under 18. Threats to publish authentic NCII are punished the same as actual publication. Threats to publish synthetic NCII carry reduced penalties (up to 18 months for adults, 30 months for minors). Clarifications: Consent to create an image does not equate to consent to publish it. Prior private sharing does not negate the victim’s right to…

ALBANY, N.Y. — Republican New York Assembly Member Brian Maher has introduced a bill to prohibit the use of the term "sex work" in government documents. The bill, AB 7008, would amend Section 69 of the general construction law to prohibit "the use of the term 'sex work' and certain variations of such term in the law or any rule, regulation or resolution." The variations include "sex worker," "sex-work" and "sex-worker." "I cannot count how many times I have used terms like 'ridiculous,' 'incomprehensible' or 'naive' when describing some of the proposed laws that I have reviewed during my 20-year legal career," said industry attorney Corey D. Silverstein. "I don't remember ever using the word 'stupid,' but that is the only word that comes to mind when reading Mr. Maher's proposed revision to Section 69." Silverstein also told XBIZ that direct challenges to constitutional protections by elected officials should be grounds for removal. "This level of ignorance of the First Amendment and free speech is so outlandish that it warrants expulsion from governance," he said. Mike Stabile, director of public policy for the Free Speech Coalition, noted the timing of the legislation following a recent lobbying effort by New York…

Another state has joined the growing list of jurisdictions implementing age verification requirements for adult content. South Dakota’s newly passed law takes a unique approach but still raises serious constitutional concerns. Given the significant impact this law could have on website operators and the adult content industry as a whole, it is essential to examine the law in detail and consider the necessary compliance measures. Here’s what website operators need to know. Key Provisions of the Law Effective Date: July 1, 2025, giving website operators a limited window to implement changes and prepare for compliance. Applicability: Unlike other states that have adopted a 33.3% threshold to determine whether a website is subject to age verification requirements, South Dakota’s law applies to any website that hosts pornographic material as part of its "regular course of trade or business." This broad definition may capture a wider range of platforms than anticipated. Enforcement: The law includes both civil and criminal liability for non-compliance, increasing the stakes for website operators. Businesses failing to adhere to the law may face severe financial penalties, lawsuits, and potential criminal charges. Consumer Impact: This law could significantly affect users' ability to access certain types of content freely. Additionally,…

On January 21, 2025, Ofcom updated its interactive compliance tool to assist providers of user-to-user and search services in meeting their obligations under the Online Safety Act 2023. The tool is designed to help service providers conduct their illegal content risk assessments and comply with illegal content safety duties, record-keeping, and review obligations. Key Requirements & Deadlines Risk Assessment Deadline: Your first illegal content risk assessment must be completed by March 16, 2025. New or Modified Services: If you launch a new service or modify an existing one so that it falls under the Act, you must complete a risk assessment within three months of the change. Ongoing Compliance: Services must review their risk assessment at least annually to ensure continued compliance. If making a significant change to your service, you must conduct a new risk assessment before implementing the change. Using Ofcom’s Compliance Tool The Ofcom compliance tool provides guidance and recommendations based on responses to a series of questions. It does not guarantee compliance but serves as a structured method for assessing risk. Providers are responsible for: Implementing safety measures as required by the Act. Keeping proper records of risk assessments and compliance efforts. Making their own legal…

In a significant development, Ofcom has issued new guidance to ensure compliance with the Online Safety Act, requiring effective age checks on platforms hosting pornography and other harmful content. These measures aim to safeguard children online, with strict implementation deadlines and enforcement actions looming for non-compliant services. Key Highlights from Ofcom’s Guidance Mandatory Age Assurance Implementation by July 2025: Part 5 services (those publishing their own pornography) must begin implementing robust age assurance immediately. Part 3 services (platforms hosting user-generated pornography and other harmful content, such as social media, tube sites, and fan platforms) must have fully operational age checks by July 2025. Children’s Access Assessments: Starting January 16, 2025, all user-to-user and search services must complete a children’s access assessment within three months (by April 16, 2025). Services likely accessed by children must implement children’s safety measures, including age checks, to protect minors from exposure to harmful content. What Constitutes Highly Effective Age Assurance? Age assurance methods must be technically accurate, robust, and fair to meet Ofcom’s standards. Approved methods include: Photo ID matching Facial age estimation Mobile network operator checks Open banking verification Not acceptable: Self-declaration or online payments without strict verification. Pornographic content must not be visible…

The U.S. Supreme Court issued a landmark decision today in TikTok Inc. v. Garland, affirming the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act (“the Act”). The ruling, delivered per curiam, has significant implications for social media platforms and national security law, particularly concerning foreign-controlled entities operating in the United States. Case Summary The Act prohibits the operation of foreign adversary-controlled applications in the U.S. without a qualified divestiture. TikTok, owned by China-based ByteDance Ltd., challenged the Act, arguing that it violated the First Amendment rights of the company and its users. Petitioners also contested the Act’s data-collection rationale and divestiture requirements. Supreme Court Ruling The Court held that the Act, as applied to TikTok, does not violate the First Amendment. Key findings include: Intermediate Scrutiny Applied: The Court found that the Act's provisions are content-neutral, aimed at preventing the exploitation of U.S. user data by a foreign adversary, and tailored to address national security concerns. Compelling Government Interest: The Court upheld Congress’s determination that TikTok’s scale and data collection practices pose a significant risk, especially given ByteDance's obligations under Chinese law to cooperate with government intelligence operations. Tailoring of the Law: The Act does not outright…

In a critical decision underscoring the protections of the First Amendment, the United States District Court for the Western District of Tennessee granted a preliminary injunction against Tennessee's Protect Tennessee Minors Act (PTMA), set to become effective on January 1, 2025. The ruling, in Free Speech Coalition, Inc. v. Skrmetti, declared that the PTMA likely violates the First Amendment by imposing content-based restrictions on constitutionally protected speech. View the Order Granting Plaintiffs' Motion for Preliminary Injunction here. Key Points of the PTMA The PTMA imposes strict criminal and civil liability on entities operating websites containing at least one-third of content deemed "harmful to minors." The law mandates intrusive age-verification requirements, such as uploading government-issued identification or using facial recognition, for website access. Violations could result in severe penalties, including felony charges and civil damages. The Court's Findings Broad and Overbroad: The Court emphasized that the PTMA is not narrowly tailored. It captures constitutionally protected speech aimed at adults, unnecessarily burdening their First Amendment rights while pursuing the state's objective of shielding minors from harmful content. Chilling Effect on Speech: The PTMA was found to objectively chill protected speech by forcing websites to incur substantial compliance costs or risk criminal prosecution…