Legal Impact Webinar Unpacks North Carolinas New Consent Law

The session was the latest in Silverstein’s “Legal Impact” series, and was moderated by content creator ClaraKitty. Silverstein, fellow industry attorney Lawrence Walters and producer/director/performer/activist Siouxsie Q served as panelists. Silverstein previously analyzed the law for XBIZ readers following its passage.

The participants delved into the law’s requirements, which call for sites and platforms to verify performers’ ages and consent via a process that significantly exceeds federal record-keeping requirements under Section 2257. It also mandates explicit written consent for each individual sexual act in which a performer engages during the creation of the content, as well as separate consent for distribution of the content. 

Further, anyone appearing in adult content is now entitled to withdraw their consent at any time, regardless of any legal contract they might have signed. The site or platform is then required to remove the content.

Walters called this a “massive change.”

“Apparently, regardless of whether you were paid for it, whether you signed all the documents, no matter when the shoot occurred, you can submit this request, and the platforms have to honor it very quickly,” Walters explained.

Exactly what content is affected by the law remains an open question, Walters noted. 

“I think, reasonably interpreted, it would apply to at least content that’s produced in North Carolina, or content depicting North Carolina residents,” he said, but cautioned that the law could also be interpreted to apply to any content distributed in North Carolina, regardless of where it was produced.

“We just don’t know,” Walters said. “The law is not specific enough.” 

Silverstein added, “North Carolina did such a hack job with this thing that the law is just completely overly broad, ambiguous, and vague — to the point where we really don’t know certain answers to questions.”

Walters then elaborated on the specific requirements of the content removal provisions. The law requires platforms to set up a dedicated system to process takedown requests and to remove content within 72 hours of receiving such a request. He also explained that the law places an onus on platforms to have a dedicated person in place to monitor takedown requests at all times, as the short compliance window necessitates speedy responses to avoid expensive penalties.

Silverstein broke down the penalties for noncompliance, noting that both the state attorney general and private citizens may file suit under the law against a platform alleged to have violated the law. Financial penalties for noncompliance can run up to $10,000 per image, per day. 

“If you do the math, the chances of there being one image in question are pretty slim,” he said. “We’re probably talking about a series of images and video combined. At $10,000 per image or video, per day, that adds up pretty quickly.”

Siouxsie Q then explained the law’s provisions mandating that performers and creators detail, on a release form, every specific sex act they intend to perform. She pointed out that this contrasts with more standard consent forms for studio shoots, which tend to be fairly broad in scope. She cited documents she regularly uses when shooting for Adult Time or Aylo.

“We focus more on people’s boundaries and limits,” Siouxsie Q said. “Where the ceiling is, where the floor is —  basically where people want to go. We don’t get into the nitty-gritty of everything that is going to happen. We talk about what you are okay with and what you are not okay with.”

While covering those topics before shooting requires significant time and effort, she noted, it does not constitute an impossible standard for productions to meet. The North Carolina law, however, sets an extremely high bar for obtaining consent — which Siouxsie Q attributed to the true intent of such laws.

“They’re made by people who want to put our industry out of business,” she said. “They’re not coming from a place of actually wanting to protect anyone, let alone vulnerable populations who might have harm come upon them.”

Silverstein agreed.

“This is about policing content,” he affirmed. “This is about a conservative view where people want to try to eliminate as much porn as possible. When they were writing this thing, that was their goal. Just via them creating this overbroad, vague mess, North Carolina is getting their wish of getting porn content out of the state.”

While the law’s impact on studio production in North Carolina is considerable, the panelists agreed, the consequences will be felt most keenly by independent content creators. Given the burden and expense of compliance, platforms are likely to avoid the risk of publishing content from creators based in the state.

Explained Silverstein, “We’re now seeing large providers and online platforms saying, ‘You know what, we can’t do this. It’s just too damn complicated.’ When they see user-submitted content with a North Carolina ID, these platforms are just saying no and shutting their doors to content from the state.”

Walters cautioned that if such laws are adopted by other states, they could effectively destroy independent content creation. He drew a parallel to the “domino effect” proliferation of age verification laws.

“In the early days, when Louisiana passed an age verification law, a lot of websites just said, ‘Oh, we’ll just block Louisiana. There’s not a lot of people there,’” Walters said. “Well, now we’ve got 25 states that have passed age verification laws.”

Walters remained optimistic, however, that solutions could be reached even if similar laws proliferate nationwide.

“It can be done,” he said. “It’s not the end of the world to come up with the required releases and address the new content that needs to be supported by the correct model releases, and ensure that everybody has the right forms in place. A compliance regime can be put in place.”

From there, the discussion moved into strategies for dealing with lawsuits — and by extension, possibly the law itself. Walters said that he “absolutely” sees the potential for a constitutional challenge to the law.

“Because this is not an age verification law to keep minors away from accessing porn online,” Walters said. “This is a content-based restriction on the creation of a specific category of speech.”

He then shared a brief history lesson on past challenges brought against Section 2257 of the United States criminal code, which placed restrictions on sexually explicit content.

“After 20 years of litigation, the court found that they were singling out sexually explicit content production for different rules, for different requirements, based on disfavoring that type of speech,” Walters said. “Requiring these burdensome compliance obligations to create all this paperwork to publish or distribute sexually explicit speech. And the statute was largely struck down on constitutional grounds.”

Challenging North Carolina’s law in this way, however, would require someone to step up and bring a suit challenging the law. On this topic, Silverstein spoke directly to webinar viewers and industry stakeholders in North Carolina.

“It’s really important that you guys are speaking up and saying that you’re willing to take part in this,” Silverstein said. “That takes courage because ultimately, being the name on a constitutional challenge against the state can be a little bit overwhelming, and cause some anxiety.”

“Unfortunately, what will probably force the issue is ultimately going to be someone getting sued or the AG initiating an administrative action,” Silverstein added. “Those would be the two things that will probably immediately lead to that person or company, whoever they are, having the option to fight it.”

A second option, he explained, could involve the industry coming together and pooling resources to take on the issue. 

“But ultimately, these challenges are very time-consuming, very costly, and they take up a tremendous amount of resources,” Silverstein noted, opining that the law’s severity makes this an option that should be considered nonetheless.

“This is by far one of the worst laws that I’ve ever seen,” he attested.

Walters agreed, stating, “It was definitely intended to make adult content production and publication as burdensome as possible, and as risky as possible in the state.”

The panelists then took questions from webinar attendees, one of whom asked about worst-case scenarios. Silverstein outlined a potential way the law could be abused.

“A performer decides today that they’re going to do a fully consensual shoot, during which everything goes fine,” he posited. “Theoretically, under this law, this person who’s been paid and signed all the proper releases could revoke consent the very next day, and the platform would have to take the content down everywhere.”

Another attendee asked whether there are states it would be safe to move to if similar consent-based laws proliferate.

Responded Silverstein, “In this country now, there’s really no safe bet. You could say, ‘Okay, I’m going to bounce from North Carolina, and I’m going to go to Arizona.’ Well, guess what? Yesterday, Arizona presented an equally insane law that makes absolutely no sense.”

The webinar wrapped up with the panelists urging attendees and everyone in the industry to stay informed and to get involved when they can.

Said Siouxsie Q, “It’s so important to be engaged with what’s happening on the local level — to know who your representative is in the state legislature, as well as the federal. Because when laws are made about us and our bodies and our community and our industry, without us being consulted, this is what happens. So the stronger that coalition can be, the louder and more powerful that coalition can be.”

Silverstein pointed out that North Carolina’s law is one in a long line of struggles the industry has had to face.

“This is just the next chapter of us fighting for our freedom of expression,” he said. “We’ll fight this fight. It’ll be hard, and it’ll suck, and there’ll be some awful hiccups. But at the end of the day, we’ll survive. And we’ll win, as we always do.”

Added Walters, “We’re not going anywhere.”

Siouxsie Q had the last word, speaking directly to the creators and performers most affected.

“To everybody in North Carolina, my heart goes out to you,” she said. “I know this frickin’ sucks. Thank you for all you do. We will get through this, and we’ll be stronger together as we always are.”