South Dakota Passes Age Verification Law, Setting Up Constitutional Clash

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, it raises concerns about privacy due to the methods required for age verification, such as submitting government-issued identification.

Constitutional Concerns & Legal Challenges

• First Amendment Issues: South Dakota lawmakers have ignored existing Supreme Court precedent protecting online speech. This law is expected to face constitutional challenges similar to those seen in other states. Courts may find that the statute imposes overly broad restrictions on lawful adult content access, violating First Amendment protections.
• Pending Supreme Court Decision: The U.S. Supreme Court is currently reviewing a challenge to Texas’ age verification law. If the Court strikes down Texas’ statute, South Dakota’s law may not survive. This ruling will be crucial in determining the long-term viability of age verification laws across multiple states.
• Legal Uncertainty for Businesses: Because South Dakota’s approach is different from existing laws in Louisiana, Utah, and Texas, courts may scrutinize it differently. However, its broad scope makes it ripe for litigation. Websites that do not typically consider themselves “adult platforms” may still be caught under the law’s provisions, leading to further disputes over its application.
• Potential for Industry-Wide Impact: If upheld, South Dakota’s law could pave the way for similar legislation across the country, increasing the regulatory burden on digital content providers. This would create new compliance challenges and costs for businesses operating in multiple jurisdictions.

Action Items for Website Operators

With the law taking effect in just four months, website operators should act quickly to ensure compliance and mitigate risks:

• Evaluate Compliance Options: Determine whether to implement age verification for South Dakota users or take alternative measures, such as blocking access from the state.
• Assess Legal Risk: Consult legal counsel to understand potential exposure to civil and criminal liability. Understanding the specific enforcement mechanisms of the law will be crucial in preparing a legal defense if necessary.
• Monitor Legal Developments: Stay updated on challenges to similar laws, especially the Supreme Court’s upcoming decision. The legal landscape regarding age verification laws is shifting rapidly, and new court rulings could significantly impact compliance requirements.
• Consider Technological Solutions: Website operators may need to explore various age verification technologies, weighing their effectiveness against potential privacy concerns. Implementing solutions that minimize user data collection while meeting legal requirements should be a priority.
• Engage in Industry Advocacy: Companies affected by this law should consider joining industry groups that advocate for digital rights and free expression. Collective action could help challenge the law or influence how it is enforced.

Conclusion

South Dakota’s age verification law is yet another attempt by state lawmakers to regulate online content at the expense of constitutional rights. Given its strict enforcement mechanisms, broad applicability, and potential implications for free speech and online privacy, website operators should take proactive steps to address compliance and mitigate legal risks. Additionally, businesses should closely watch legal developments in this space, particularly the Supreme Court’s forthcoming decision, which may determine the future of age verification laws nationwide.

For further guidance or legal assistance, contact Silverstein Legal.

About Silverstein Legal

Founded in 2006 by adult entertainment lawyer Corey D. Silverstein, Silverstein Legal is a boutique law firm that caters to the needs of anyone working in the adult entertainment industry. Silverstein Legal’s clients include hosting companies, affiliate programs, content producers, processors, designers, developers, and website operators.