The internet can feel like the wild west, a place where people of all ages, including children, are just a few clicks away from encountering explicit content. Given this digital landscape, it is understandable that parents want to shield their kids from materials intended for adults.  

But SB 17, a bill aimed at limiting minors’ access to content online, would ultimately violate the constitutional rights of adult Hoosiers.  

This bill stipulates that any website that displays “material harmful to minors,” is required to use an age verification method to guarantee only adults are accessing the website. If the website fails to do so, the parents of a child harmed by the website’s content can sue for damages. And, as passed in the Indiana House, the bill would also allow the Attorney General to sue companies who fail to follow the law. 

An Unconstitutional Law

This legislation will undoubtedly have a chilling effect on free expression online. The legitimate fear of having personal information exposed may deter adults from accessing legal and consensual adult content, thereby limiting their freedom to explore and express themselves in a private digital space. 

The Supreme Court has ruled that states can restrict a minor's access to adult material, but legislators must navigate a delicate balance mandated by the U.S. Constitution. The law cannot inhibit a minor's access while simultaneously burdening an adult's right to access the same material. 

In a precedent-setting case, Reno v. ACLU, the courts deemed age verification requirements were unconstitutional when a less restrictive alternative exists. For example, the voluntary installation of parental control filters. 

Privacy Concerns

If this law goes into effect it will require that Internet users share personal data, such as a photo ID, with companies that claim to verify the user’s age. This will block some people – for example, those that lack government ID’s or whose age is mis-identified by this technology – from accessing these sites.

Hoosiers can’t be confident that these businesses have the capacity or processes to verify user’s ages, while keeping this information private. The bill requires companies to delete users’ personal information immediately, but without proper protections, bad actors – hackers or disgruntled employees – could use someone’s personal data for exploitation.

And this isn’t just a hypothetical. Health insurers, massive retail corporations, and government agencies have all faced data breaches.  

Unintended Consequences

Similar legislation in other states—Utah, Montana, Texas, Louisiana, Arkansas, Mississippi, North Carolina and Virginia—has drawn criticism for its unintended — or in some cases, intended — consequences.

In Utah, a similar bill caused PornHub – which receives 130 million total visitors per day – to block access to its site in the state, denying law-abiding adults access to constitutionally protected material. A statement from the company warned that the new age verification law could result in users seeking out sites with “far fewer safety measures.”

In some cases, companies may decide the financial burden of implementing the requirements outlined in SB 17 is not worth continuing to operate in Indiana. The costs of designing this age verification technology can easily surpass $100,000, plus the cost of potential lawsuits from parents and the Attorney General.   

Ongoing Culture Wars

SB 17 uses the broadly defined phrase “material harmful to minors,” which could ultimately be used to target age-appropriate LGBTQ+ or sex education content. We’ve already witnessed a systematic effort to censor access to LGBTQ+ literature in Indiana’s schools and libraries using the phrase “material harmful to minors.”

The Internet may emerge as the new battleground in some legislators’ efforts to erase LGBTQ+ Hoosiers.

Parents can already determine what content is appropriate for their kids, and tools exist to help them manage their children’s time on the Internet. These existing tools can do the job of this bill, without infringing on Hoosiers' rights.

If Indiana lawmakers proceed with this legislation, it will surely be held up in the courts as we have seen in other states. Lawmakers should not jeopardize the First Amendment rights of Hoosiers in an effort to censor the Internet.  

TAKE ACTION TO STOP SB 17

*2/21/24 update: The ACLU of Indiana supported an amendment to HB 1002 which significantly improved the bill by eliminating the addition of a definition of antisemitism in Indiana code that included multiple examples of protected political speech and targeted critics of the state of Israel. The examples would likely have been most commonly used to silence supporters of Palestine. 

In its current form, the ACLU of Indiana still opposes the section of the bill that defines one expression of antisemitism as a form of discrimination. Read more on our bill tracker. 

At the ACLU of Indiana, we are committed to defending civil rights and liberties of all people in America. Antisemitism is affecting Jewish Hoosiers throughout our state, and we are committed to supporting constitutional responses to it wherever we can. However, a recent bill moving quickly through the Indiana Statehouse, HB 1002, threatens free speech and meaningful discourse on our public university campuses. It should be defeated.

Harassment of individual Jewish students, faculty, staff, and visitors to our public universities (or student groups at our universities) is not protected speech. Higher education administrators have the tools to respond to such harassment and should be doing so. But, political discourse — even discourse that is uncomfortable or offensive — must not be stifled by our legislators or administrators.

By going beyond raising awareness of antisemitic harassment, HB 1002 heightens fears that constitutionally protected criticism of the state of Israel or Israeli policies or practices will be punished as harassment or discrimination. And that punishment will fall hardest on Palestinian-Americans and supporters of Palestine. 

This is not a theoretical concern. Indiana University Bloomington recently canceled a long planned retrospective at the Eskenazi Museum of Art by Samia Halaby, considered one of the most important living Palestinian artists. An IU graduate, Ms. Halaby has reported that school officials told her that the cancellation followed museum staff responses to Ms. Halaby’s social media posts critical of Israel. To date, IU has only shared that Ms. Halaby’s retrospective was canceled because of the university’s “concerns about guaranteeing the integrity of the exhibit for its duration.”

There is no doubt that higher education administrators in Indiana and nationwide are facing enormous pressure to take similar steps. A letter late last year from U.S. Representative Jim Banks, currently running to represent Indiana in the U.S. Senate, threatened IU Bloomington with loss of federal funds if it did not prohibit “anti-Jewish and antisemitic discrimination.” Yet, in citing examples of antisemitism, Representative Banks explicitly mentioned instances of protected political speech, such as referring to Israelis as “occupiers.”

This conflation between protected political speech and anti-Jewish or antisemitic discrimination is present in HB 1002 as well. People of good will support HB 1002 because they believe it will make our public universities safer. Unfortunately, we do not agree that it will.

Taken as a whole, HB 1002 is breathtaking in its scope. It incorporates an extremely broad definition of antisemitism that includes widespread criticism of the Israeli government. HB 1002 then defines a single expression of antisemitism as discrimination. And the policy outlined in HB 1002 would apply to the entirety of the public university experience — classroom discussions, debates, casual conversations on campus, protests, and curriculum. If it becomes state policy, it will sow further confusion for everyone in the public education environment and lead higher education administrators to punish protected speech.

The ACLU of Indiana stands firmly for the right to express ideas — even controversial or offensive ones — as part of our guarantee of free speech. While that guarantee does not — and should not — extend to the harassment of individuals based on a protected category, we are clear that it most certainly extends to positions that would be unjustly defined as discrimination under HB 1002.

The fight against antisemitism is crucial. However, HB 1002 creates a false choice between protecting Jewish students, faculty, staff, and visitors at our public universities from harassment and protecting free speech. At the ACLU of Indiana, we believe we can — and must — do both.