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There's a special version of the Miller test for what is obscene to minors that sets the bar a little lower for media that is sent solely to them, though rules that can impact non-minors hits Ashcroft. The Miller test is pretty arbitrary, but even accepting its constraints, you still run into Problems with a lot of the proposed policies, here.
Most overtly, these policies are not file- or image-specific but website-wide. The North Carolina statute requires any website where "more than thirty-three and one-third percent (33 1/3%) of total material" fails the Miller test. Presumably, this is to avoid sites which only have incidental (or spam) content from being included (although it'd be a little weird if e621 uploads every frame of Steamboat Willie as a separate file to pump the numbers), but this gets complicated for sites that have both SFW and NSFW components.
A lot of furry sites, for example (2015 data, sorry, not finding up-to-date breakdowns), have a large portion or even majority of content marked as plainly safe or only moderate, and some of the content they consider as explicit would still pass the Miller text (and maybe obscene-as-to-minors test) even if it wasn't exactly high-quality deep literature. I think the North Carolina statute excludes written material, but other state laws don't, and either approach has its tradeoffs -- and there are definitely comic or media works with serious literary or artistic value (and no exposed bits).
I wouldn't want a teenager talking with people on InkBunny even if it had an ironclad SFW filter, but FurAffinity or maybe even modern SoFurry? Housepets!, Caelum Sky, read some SFW Rukis stuff, learn some art tricks and tips, join a MineCraft or Terraria server, those aren't the worst things on the planet, and there's a lot of just normalish (or at least as close as furries get to that) communication. Okay, well, furries are... weird. There are reasonable arguments even with the fandom of having even SFW spaces as off-limits to minors: I don't agree with them, but they're not crazy.
What about Discord? I dunno -- and I dunno that Discord knows -- what percentage of image and video file uploads are adult content or obscene, but there are individual discord 'servers' where the rule is always to be SFW, some (particularly common for gaming guilds) where there's one or two focused on adult content, and then some where the whole server is marked 18+ and maybe one-in-ten channels is SFW. Does the site only become liable when the porn discords are going whole hog? By month, by week?
Now, there's only a cause of action for minors accessing adult content material from sites that don't implement compliant age verification; these sites could theoretically do age verification and then just hard-force-on a SFW filter. It's not even clear what would happen for websites who don't: the NC statute and most similar laws just allow a generic "compensatory and punitive damages", "an injunction to enjoin continued violation of this section", and fees.
But in practice, only the largest websites would be able to handle this sort of lawsuit: the costs of simply showing up are tremendous, and injunctions could be absolutely damning. There is no federal anti-SLAPP law, and North Carolina doesn't have one either. Any small web host that thinks they could be even plausibly targeted just has to avoid this matter entirely.
I do not have much to add to the main arguments, and I don't follow other sites that well, but I can confirm (with little credibility) that e621 averages around 60% explicit (by their standards) content. Here is a hastily thrown together graph (expect this to 404 at some point in the future) where you can see the history of post rating over time. With how tagging works on e6, I would claim 50% of questionable content is aimed to excite the mind in the same way explicit content is. This leads the overall percentage to something like 68% explicit. Despite the pleas from the staff (sorry Mairo I love you and everything you do, but you're wrong) the
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I agree that the policies targeting websites are more nebulous and throw a wrench into the matter. But most people don't even seem aware what the current legality of pornographic content even is. That people think pornography is protected shows that most people (even well-educated people on the Motte) have no idea what is currently on the books. This is an area where it seems the law and the culture have diverged dramatically without much attempt to update the laws. Alternatively, many very-online people have no idea what the average US citizen thinks of Porn use and how available it ought to be.
The only sane application of the law to me would be to streamline a system where parents can sue content distributors or individuals for serving a specific pornographic image to their specific minor without sufficient age verification. That keeps half the burden of proof on the parent to show A) their kid saw porn, B) the party being sued is responsible for the child viewing the porn and C) the party being sued did not use sufficient age verification (defined by the state.) Depending on the damages and how simple this is to file, this could have a dampening effect on even less-than-legit-venues and individual actors on Discord.
I'd quibble that part of people's expectations of the legal scenario reflect the vague and oft-moving ground of the community standards component of the Miller test, with the Movie Buffs case being one of the better-known limits. Miller requires not one of these prongs to be broken, but all of them. There's definitely stuff in the modern era that would fail it, but there's also a lot of stuff that's "porn" or actual-porn by normal definitions that wouldn't.
I think that's a good argument in favor of Douglass's critic of Miller's community standards -- if to the opposite valence as his original intent -- but the problem makes the law hard to analyze. The same content could well be obscene or not just by traveling a hundred miles, or thanks to a tiny fig leaf of 'social importance'.
I can understand why that might look like an attractive approach at first glance, but I think it has insufficient consideration for how the legal system operates in practice.
At the simplest level, most less-than-legit venues will just been driven outside of the United States (or operate through service run in jurisdictions outside of the United States), beyond what extent they already have moved, since meaningfully collecting judgement on a civil suit across national boundaries is effectively outside of the scope of all but the largest corporations. Even within the US, there's a lot of sites and actors that are judgement proof or effectively judgement proof.
Okay, but the central example is a teenager getting caught accessing a US-bound it's-all-just-porn site, or a rando (in the US, using a US-jurisdiction service) on social media passing/spamming porn at people. Let's assume that we're able to identify the bad actor, and that there's no complications about identification or the nature of the content. What's the process like, here?
The parents bring a (likely interstate!) lawsuit for damages. That's not entirely implausible, especially since a teenager 'borrowing' a parent's credit card, even if it's more likely to revolve around emotional harm. They've got to ante a lot more in legal fees and lawyer costs than the actual damages, and courts generally don't like actually letting all that be recovered even where, such as here, the law does allow for some such recovery, but if you want to prove a point, that's an approach people do take. Might even get an injunction requiring the vendor to comply with an age verification schema. There's some fun procedural issues -- venue, for example -- but there's definitely someone that's going to hit every one.
... what happens with all the cases that don't go every bar of that? What happens for the nuisance lawsuits? Or the sincerely believed ones that are still wrong? Hell, what happens with the times people win, without any true wrongdoing by the website provider? Maybe that's a reasonable tradeoff, but unfortunately you can't really limit the law to the sane applications.
You definitely know more on the topic than I do, my background is a class I took on copyright that only tangentially spoke on this.
That said, I think about medical malpractice lawsuits, which are notoriously difficult to win, expensive for everyone, etc. And yet the tiny amount of medical malpractice lawsuits that go anywhere have had a huge effect on how every doctor and hospital system conducts business. I guess the main difference is that medical procedures take place in a specific location in the US, and so jurisdiction is simple?
Nearer and simpler jurisdiction helps -- the US famously doesn't have interstate small claims courts -- but also the higher damages in severe cases, along with a lot of readily-available experts on best practices, and a liability insurance system that's heavily integrated (and sometimes mandatory) that makes people less judgement proof.
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