The Supreme Court seems eager to curb First Amendment protections for porn (Vox)

A major free speech argument about pornographic websites went disastrously for the porn industry.

On Wednesday, the Supreme Court heard the first major First Amendment case involving pornography — or, for that matter, sexual speech of any kind — in more than two decades. It’s also the first such case since Republicans gained a 6-3 supermajority on the Supreme Court. And it’s a case that potentially allows the justices to both limit adults’ access to pornography and walk back longstanding free speech protections for sexual content.

Wednesday’s oral argument went disastrously for the porn industry. Current protections for online sexual content don’t seem like they will be completely destroyed, but all six of the Court’s Republicans plus Democratic Justice Elena Kagan appear likely to weaken those First Amendment protections (although it remains to be seen just how far they will go in doing so).

The case, known as Free Speech Coalition v. Paxton, involves a Texas law that requires many websites that publish a significant amount of “sexual material harmful to minors” to verify the age of its users before those users can access that material. The law is extraordinarily similar to a federal age-gating requirement that the Supreme Court struck down in Ashcroft v. ACLU (2004).

Ashcroft applied the most skeptical test the Supreme Court applies in constitutional cases, known as “strict scrutiny” to the federal law. Under strict scrutiny, a law must be “narrowly tailored” to advance a “compelling” goal in order to survive. The overwhelming majority of laws subject to this test fail.

Specifically, Ashcroft ruled that the federal age-gating law did not survive this test because, instead of requiring every pornographic website to check the age of every user, the government could have promoted “blocking and filtering software” that allows parents and teachers to prevent a particular computer from loading these websites.

Most of today’s justices, however, appeared to believe that Ashcroft is obsolete. As Justice Amy Coney Barrett noted, Ashcroft was decided before the invention of the iPhone, and before the proliferation of any number of internet-connected devices that children could use to access pornography. At one point, she spoke about the trouble she’s personally experienced as a parent trying to block certain content on all of these various devices.

Or, as Justice Samuel Alito put it, there is a “huge volume of evidence that filtering doesn’t work,” in part because children are often far more tech-savvy than their parents.

But, while Ashcroft had few fans at Wednesday’s argument, it’s unclear how, exactly, the Court will roll back protections for sexual speech. Nor is it clear whether the new legal standard will prevent adults from viewing sexual content that the Court has consistently said they have a First Amendment right to see.

Another question is, if the Court permits age-gating, what sort of content will the Court allow the government to place a gate around? Could the state of Florida forbid children from reading a transgender author’s memoir of their transition? Or could it similarly prevent gay teenagers from accessing online forums where queer people discuss their sexuality? What if a 16-year-old boy, who is thinking of having sex for the first time, wants to watch an instructional video showing someone correctly putting on a condom?

These questions, however, will probably have to wait for future litigation. For the moment, the only thing that appears reasonably clear is that the Court is likely to reduce the level of First Amendment protection afforded to online pornography — but it is completely unclear just how much they will reduce it.

Most of the justices started from the assumption that the government must have the power to restrict children’s access to porn

Several justices were quite explicit that they believed that, whatever rule is governing online pornography, it must be flexible enough to allow some laws which seek to bar children from watching porn. As Kagan put it, “it’s got to be the case that states can do some regulation in this area.”

Similarly, Chief Justice John Roberts seemed concerned that the more speech-protective regime that has been in place for decades is not compatible with the modern internet. “Technology access to pornography has exploded,” Roberts told Derek Shaffer, a lawyer who represents much of the porn industry. Roberts also expressed concerns that the nature of this content has changed since the era of relatively tasteful nude photographs in Playboy magazine.

And so the oral argument in Free Speech Coalition bore more resemblance to a meeting of lawmakers trying to decide what should be in an anti-porn bill, rather than a meeting of judges trying to decide how to apply the Supreme Court’s First Amendment precedents to a particular case. …

Entire article by Ian Millhiser