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You raise some interesting points, but I don't know if any of them are really enough to torpedo this law. Constitutional questions are intriguing and omnipresent, but do they really apply here? It's already illegal in a lot of places to provide minors access to obscene material, and requiring ID to by a porno magazine isn't much different, constitutionally speaking, than requiring ID to view internet pornography. Dormant commerce clause doesn't really apply since sites can target Louisiana IPs. I don't know that the Ashcroft decision really applies here since that case was about a blanket ban on online pornography, not an ID requirement. Your argument about the percentages is more compelling, but even then I doubt a site could get around it; courts don't look too kindly on bad-faith attempts to get around the law through various "gotchas".
That all being said, I still agree with you that the law is stupid and inevitably doomed to failure. The reason? Practicality. One of the notable failings of the legislation is the inability to provide for statutory damages. This means that any award of damages would have to be related to the harm caused in the same way that a personal injury award is related to things like medical bills and missed work. If a woman came into my office and told me she wanted to sue XHamster because her 14 year old son saw a naked boob, I'd have no idea what to even ask for. Nominal damages? How does one quantify that? How much more would it be worth if the kid was traumatized by a rape fantasy or S&M video?
And then there's the question of proof. If the mother walks in on the kid, fine, she can testify. But what if the kid just forgot to open a private browsing session, and dad sees it in his history, and the kid admits it to him? Well, now we need the kid to testify that he was, in fact the one who accessed the website. Actually, the kid is probably going to have to testify anyway, since such testimony will probably be necessary to determine what effect this premature exposure actually had and thus what damages are warranted. I doubt many parents are going to want to subject their teenage children to being grilled by hostile attorneys about their masturbation habits in public. The law itself will probably be upheld even in the absence of an easy way of having it litigated, but does it really matter? In light of what happened in Texas, I think the LA legislature got a little too cute here. Simply having the AG enforce an ID requirement would have been relatively easy, and while there would have been a court challenge, there isn't any obvious constitutional problem. Now they've simple created a law that, by deputizing the public to enforce it, ensures that it won't be enforced.
That's fair, and trying to predict how courts will take First Amendment reasoning is always a little bit of a guessing game. It's possible that the justices would consider criminal penalties as implicating free speech in ways that civil penalties do not. If they do at all, though, I think Ashcroft is pretty on-point for requiring strict scrutiny and for the 'least restrictive means' testing, at least:
Now, that was partially a fact-based evaluation: the state did not provide and at that time could not provide evidence that criminal penalties were particularly effective compared to filtering options. But while the calculus has changed a little since -- the "family computer" is far less standard a concept today -- I don't think most of these have changed enough.
I think that's why you don't see a simple statute that could be enforced by the AG as a criminal law or regulatory matter.
I'd expect that the typical 'lawsuit' involves a parent bringing a laptop to the legal office, the lawyer's tech getting a list of every site in its history, sending a glorified shakedown letter to every business with offices in the United States but not, actually issuing service to those who don't respond, and then dismissing anyone who actually shows up to the court, which 'solves' a lot of this. A lot of the protections the adversarial system provides depend pretty heavily on being able to get a lawyer half-way across the country on short notice, and for smaller shops that probably won't be in the cards.
That said, for actual cases, I agree this is the most immediate limitation. The intended test case-for-actual-courtrooms might have some trivial-but-uncontestable damages, like where the kid used a credit card without the parent's consent, and then tries to mug as much at the jury or judge as possible on anything else, then exploit the legal fees mandate a la the Westboro approach (note that it's specifically shall for both new actions) as hard as possible. Louisiana does have odd rules for punitive damages where not specified by the statute for annoying historical reasons, though I don't know enough on it to say if it matters here.
Alternatively, the intellectual sponsors of the bill may look for the worst cases -- where a minor ends up groomed, abused, or tricked into uploading unlawful and humiliating content. Damages and fault are still a mess to estimate, especially given that a lot of the most anti-porn people will find 'ended up trans' was 'because' of porn, but revenge porn cases have sketched out a number of related test cases for simple matters, and it's far more likely to make the defendant as unsympathetic as possible.
On its own, I don't think that's unusual; there's too many statutes that allow random shakedowns. But add in a regulatory and financial infrastructure that's very vulnerable to pressure, and a lot of very valid reasons for people to be risk-averse themselves, and it can have pretty broad effects if popularized.
Unfortunately, I don't think you need a huge number. While not an exact parallel, the Americans with Disabilities Act had (and has) quite a number of people making pretty similar defenses, where a lot of hypothetical abuse would be limited because making court pleadings and testimony would often be humiliating. And for the median person, that's true! But on the tail end, you have people producing thousands of filed suits (in addition to whatever number of complaints and unfiled threats-of-suit), sometimes involving pretty humiliating avowances and courtroom testimony. Nor is it some special exception: there are multiple state laws informally named after and immortalizing (what I hope was) a 14-year-old's most humiliating day so far.
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It's also unenforceable -- if there's one group that I would trust to figure out which shady sites (likely ones who are out of reach of US civil courts) aren't enforcing the ID requirement (and/or deploy VPNs to present themselves to the site as residents of a 'safe' jurisdiction), it would be porn-hungry teenage boys.
Easy to enforce if the state has the will to do it, unless you think other things (like CP bans) are also unenforceable.
Pretty much every country in the world is on board with CP bans, and there's major international infrastructure for the location and prosecution of offenders -- if regular porn were subject to the same sort of campaign, maybe -- but that is not the world in which we live.
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