Porn on the docket

On their way out the door for summer break last Friday, the nine justices of the Supreme Court handed down several rulings that days later still have people asking what, why, and how will that work?

The court did not strike down birthright citizenship, though it did give President Trump more power.

It's been an amazing period of time this last hour.

By limiting courts from slapping nationwide injunctions on the president's executive orders, the court also ruled that parents can opt kids out of class if they're reading books with LGBTQ characters.

We talked, you might remember, to a concerned Muslim parent two summers ago.

Through that book, there's a discussion about the use of pronouns.

They introduced transgender, non-binary, in our opinion, not age-appropriate for our six-year-old.

And they issued a ruling on porn that is also a ruling on free speech that could have implications for you if you catch my drift.

That's coming up on Today Explained.

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I am Mark Joseph Stern, and I am a legal writer for Slate covering courts and the law.

The Supreme Court just wrapped up their term.

They're going on vacation.

You and I are still here.

There were a lot of big decisions at the end, as there often are.

We wanted to talk to you about one, and that decision, that case, was about porn.

Tell us about it.

So, this is a case called Free Speech Coalition versus Paxton that was a challenge to a Texas law that restricts access to sexually explicit speech online, specifically internet porn.

Under the law, individuals can only access pornography if they prove that they're over 18 through age verification.

And those who run websites that contain pornography are responsible for ensuring that people under 18 don't get to see their materials.

If they fail to perform that task, then they're subject to pretty massive, if not ruinous, fines.

And these are laws that have sprung up in many, many states over the last few years as more legislators and parents have grown concerned about the ubiquity of porn on the internet.

Pornography inflicts its poison on marriages, on families, and on communities.

And worst of all, it steals innocence from our children and endangers them.

Parents are in a competition with big tech companies, and whoever wins that competition is going to determine what kinds of people are formed and, therefore, what kind of nation we become.

Children are frequently exposed to pornography.

So pornography has literally been invading our homes and our children's lives through the internet.

How do you prove you're 18 or over?

So, you have to submit your ID through a third-party platform that the pornography website will link you to.

And there are some pretty serious data privacy concerns about this protocol.

These platforms are not entirely secure.

Some of the plaintiffs here argue that adults who have a right to access this stuff will not do so because they're afraid that the data will leak and that people will know that they were using their IDs to watch porn.

All right, so let's talk about the players, Free Speech Coalition versus Paxton.

Who's who?

So Free Speech Coalition is a trade group that essentially represents the pornography industry.

They have been super active in defending the rights of pornographers and adults who enjoy pornography to continue making and watching that content and to try to tackle and overturn restrictions on porn.

They've been the plaintiff in a bunch of pretty important cases setting the rules of the road for online porn.

And Paxton is the Attorney General of Texas and he is the one who would be enforcing this law against porn websites.

You look anywhere in the developed world or anywhere, children are protected.

It's my job to enforce Texas law.

In this case, I feel very comfortable protecting our children from having this put in front of them.

So it's a pretty clear dispute.

There are those who think that, you know, it should be pretty easy to watch porn online and those who think that it should be fairly difficult.

And they had a big fight over the First Amendment.

I love that the porn trade association called itself the Free Speech Coalition.

So it is very funny.

It's something that surprises people a lot.

You know, I think they wanted a kind of anodyne name.

They didn't want to be like pornographers associated or something.

You know,

they didn't want to be sort of tarred with the stigma of online porn.

And I guess I will just say, like, you know, the speech in this case is considered sort of low value.

You know, not many people want to stand up and defend internet pornography, but the implications of these cases and these decisions sweep well beyond internet porn.

And so I think the Free Speech Coalition has like a legitimate claim to that name.

They are not just defending pornography.

They're defending other kinds of speech that wind up receiving protections when porn is protected as well.

Low value speech is such a good way of putting it.

When the coalition makes their argument, do they say, hey guys, this could affect, I'm sure they don't call it high value speech, but this could affect the kind of speech that is not porn?

Like what, how do they, how do they draw that argument down to something that might bug me, a person who's not seeking porn?

Every single time Free Speech Coalition brings a case like this, they argue that they're representing more than just the interests of porn websites.

Mr.

Schaefer.

Thank you, Mr.

Chief Justice, and may it please the court.

To abandon strict scrutiny here, Your Honors, could open the door to an emerging wave of regulations that imperil free speech online.

And I think they're right.

In some other cases in other states challenging similar laws, they have brought in individuals who create erotic literature, literatica as it's known, individuals who publish salacious stories or even booksellers who publish e-books with

sexually explicit material, romance novels, right?

All of that stuff could potentially get swept up in laws designed to restrict internet pornography.

And so Free Speech Coalition does work to expand beyond just the pornographers to say, look,

there is material on Netflix that is sexually explicit.

There's material on HBO Max.

There's material in the book Ulysses famously that's sexually explicit.

Like we are on the front lines of this because we're usually the first to be targeted, but we are trying to create an umbrella to protect everybody's speech.

All right.

So the justices are considering all of this.

What did the court decide?

So the court decided something that is a little surprising and not what most of us thought would happen.

Can I just get into the weeds a little bit?

By all means.

So in the past, the Supreme Court has applied strict scrutiny to laws that restrict adults' access to sexual speech.

That means that the court requires really careful examination of how much speech the law is censoring.

It requires the government to very carefully and narrowly tailor the law to ensure that it's not burdening too much protected speech.

But in another case, the Supreme Court held that strict scrutiny doesn't apply when kids are involved, that children don't have access to sea sexually explicit material.

And so states have a much broader hand in cutting off kids from porn.

And in those cases, the court has just applied what we call rational basis review, which is very lenient.

So the question in this case was seemingly whether the court would apply strict scrutiny to this law and likely strike it down or apply rational basis review to uphold it.

And the answer was neither.

What?

Which is really surprising.

And so what the court did instead was take a kind of middle ground and it's applied something called intermediate scrutiny, which is in between rational basis review and strict scrutiny, as you might guess.

And it asks also whether the government is furthering an important interest, but it doesn't require that level of narrow tailoring where the government has to be super duper careful in making sure that it's not restricting more speech than necessary.

The test gives the government a lot more leeway to restrict speech

as long as it's not sweeping in a huge amount of protected speech.

And so here, the Supreme Court, in an opinion by Justice Clarence Thomas, said, we think that this is the appropriate standard because all that texas is doing here is preventing minors from seeing speech that they're not allowed to see that they have no constitutional right to see

and it might have some burden for adults but that burden isn't very high so we're not going to treat this like censorship we're not going to treat this like a targeted effort to censor protected speech we're going to treat this more like a kind of reasonable effort to protect children and if that creates some pains and burdens for adults we think that's still okay.

Okay, so I have the right to watch my steamy romance on Netflix, but a 15-year-old doesn't have the right to go on Pornhub.

Um, it sounds very rational.

It was a 6-3 decision.

The justices who dissented, what were they arguing?

Yeah, so Justice Elena Kagan dissented, and she was joined by Justice Sotomayor and Justice Jackson.

So, these are basically the three liberals, right?

And they argue, I think correctly, that the Supreme Court rewrote its precedence.

I just don't think it's true, as the court says in this case,

that it's okay to apply a relaxed form of scrutiny under those other cases, as long as the government says it's trying to protect children.

The government always says it's trying to protect children, right?

Like this has always been the justification for restricting sexually explicit material.

And yet, in those previous cases, in the 90s and the aughts, the Supreme Court still applied really strict scrutiny.

And so here, I think the dissenters are a little confused.

And they basically say, we think the majority is confused too, about what standards should apply.

And Justice Kagan says it should be strict scrutiny.

And maybe this law would survive strict scrutiny, but that should be the approach that we take because the reality is that this is burdening adults' access to protected expression.

And anytime that burden is happening, we need to be applying strict scrutiny so we can make sure that it comports with the First Amendment.

The Supreme Court, as I understand it, has a long history of being being reluctant to limit speech.

Does this ruling surprise you?

Does this ruling suggest we're someplace new?

Yeah, I would say that this ruling shows that the Supreme Court is maybe a little less concerned about protecting sexually explicit speech.

Maybe it's relaxing its standards for

laws that try to prevent children from seeing sexually explicit material, but wind up having the effect of censoring that material for adults as well.

Justice Thomas talks a lot about history in his opinion.

History, tradition, and precedent recognize that states have two distinct powers to address obscenity.

They may prescribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children.

By the 18th century, English common law.

He talks about how there's a long tradition of protecting children from sexually explicit speech.

And I think what he's trying to signal is that maybe, you know, the court went a little too far in protecting porn in the past, and that the court needs to pull back and give

the people through their representatives, the democratic process, more latitude, especially as technology changes and it becomes so much easier to access this material.

You know, and I think the court's saying with that change and in light of history, we think that's okay.

Thank you, Mark.

Yeah, of course, anytime.

Mark Joseph Stern.

He's a legal writer at Slate, and he also co-hosts their SCOTUS podcast, Amicus.

Coming up, why the Supreme Court has been considering porn for decades?

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Ian Milheiser is here, Ian's Vox's Supreme Court correspondent.

He's written two books about the Supremes, and he wrote for Vox The Hilarious Implications of the Supreme Court's porn decision.

The case that the Supreme Court ruled on last week was a very modern one.

It comes down to children being able to access pornography on Al Gore's internet.

But

this is not the first time in history, I gather, that the Supreme Court has taken on the issue of porn.

It's not, although it is the first time in a really long time that they have done so.

So, a simply enormous amount of First Amendment law developed out of pornographic or otherwise sexual speech.

And that's not surprising because, like, the whole point of the First Amendment is to prevent the government from banning speech that someone hates.

You know, uncontroversial speech, speech that no one has any problem with it, that never gets banned in the first place.

So those don't become First Amendment cases.

It's always speech that someone wants to censor that forms the basis of First Amendment cases.

All right.

Where does all of this begin?

Let me give you, I guess, a hundred-year history of this, of the First Amendment.

Sure.

So for most of American history, free speech didn't exist in the United States.

You know, we had a First Amendment, but it was basically meaningless.

And this isn't just true about sexual speech.

This is true, you know, in World War I, it was a crime to fly the German flag.

Eugene Jebs, who was kind of a perennial presidential candidate, the Supreme Court upheld a 10-year jail sentence against him because he gave a speech in which he protested the draft and he protested the government's practice of censoring people who criticized the draft.

So, like, that's where our First Amendment law was a little more than a hundred years ago.

This was also the era of what is called the Comstock Act.

The Comstock Act, it's technically still in the books, although it's never enforced anymore, made it illegal to send what is called obscene or indecent materials through the mail.

And the upshot of that was that

literature, erotic literature was banned.

Fine works of nude art were often the subject of prosecutions, including works that we now consider to be masterpieces.

That was just how things were for most of American history.

And it wasn't really until the 1950s that the Supreme Court said, we're going to start protecting sexualized speech.

We're going to start saying that you can't throw someone in jail just because they sell a novel with some naughty bits in it.

The precedent that is in effect right now is the Miller test.

Miller comes from Miller v.

California from 1973.

It had this rule where

you have to ask whether the material has any serious artistic, scientific, political, literary, or other sorts of value.

And if it has that sort of value, then it's allow.

Then the First Amendment protects it.

There's two things I'll say about that rule.

one is that it's a pretty protective rule it's a very first amendment friendly rule but the other thing is like if you're asking whether something has very serious artistic value that's a really subjective test like you know

every person's definition of what has serious artistic value is going to be different.

And so it forced the justices into some pretty humiliating conditions because suddenly they had to evaluate on an individual basis.

Does this porto movie have serious artistic value?

Oh, no.

The justices of the 1970s used to have movie day.

Whenever there was a case involving a pornographic movie that reached the Supreme Court, you know, when you're a judge, you got to look at the evidence.

So the justices would meet in the basement of the Supreme Court to watch the porno.

This was obviously a very humiliating experience.

Justice Harlan at the time was nearly blind.

And so he actually had to have a law clerk sit next to him and describe what was going on.

Exactly.

It was such a humiliating experience for the justices.

This was the era where Justice Potter Stewart came up with his infamous, I know it when I see it line.

You know, I don't know what hard pornography is, but I know it while I see it.

And so the justices were being forced into the basement to decide whether they see it in each of these individual films.

On top of it, these cases were producing all kinds of absurdities in the kind of art that was being produced.

So there was one film that came up in front of the Supreme Court, and the plot of this thing was literally: there's a woman, she likes sex, she has a lot of sex, and then she gets on an airplane, and the airplane is hijacked.

We could stop in Sacramento, couldn't we?

We'd be violating international law.

And I suggest you violate it.

Huh?

If I am correct, with six stops for refusing, we shall be in Havana in approximately 30 hours.

And the hijacker launches into this lecture on the relative virtues of communist and capitalist societies.

The communist countries have far less money than America, but the people work together as equals.

Now, why did that happen?

Well, one reason is because it meant the film was protected by the First Amendment.

Okay, okay, so in Miller, in Miller, they decide that most porn is protected under the First Amendment.

Yeah, that was the practical effect of it.

I mean, there's still something, like the one category that we do still regulate, and I'm glad that we do it, is child porn.

So child pornography, and then there's some other thing that if it's non-consensual, that can still be prosecuted as rape.

So it's not like there isn't any regulation in this space, but there has been very little regulation.

And I think that's a combination of three things.

One is the Miller test.

The Miller test is just a very First Amendment protective test.

The second is the experience of the justices in the basement.

I mean, once you decide

that some sexual speech is protected, judges are going to have to look at the evidence

and decide whether this piece of sexual art is protected.

And so it is inevitable, unless you have a very libertarian rule, that you're going to have justices in the basement watching pornos.

And then the third reason why I think things took a more libertarian turn is just technology advance.

So this Texas case that was just decided is about age gating software.

In some states, if you look at a porn website, the website has to verify your age.

And I will tell you solely for professional reasons that, of course, have nothing to do with my personal Puritan interest.

I live in Virginia, which is one of the states that is a Texas-style law.

Pornhub has pulled out of those states because they think it's too difficult to comply with the law.

So I went to my computer in Virginia and I typed in pornhub.com and I would not be able to see nudie videos in the state of Virginia.

And then I spent two minutes installing a VPN.

And after two minutes of work, I was able to watch porn in Virginia again.

It is child's play to get around these laws.

So,

you know, the fact that technology has evolved to a point that makes it very difficult for regulators to regulate, I think is also a factor here.

Yeah, when the justices handed down this decision on Friday, as we heard in the first half of the show, there really did seem to be an effort to protect minors or to suggest that maybe we've been a little bit too lax.

We've leaned too hard on the First Amendment without realizing like what is actually going on online.

So how does the decision on Friday complicate free speech protections more broadly?

Or does it even?

So the short answer to that is that it remains to be seen.

So it is definitely the case that the justices felt like

they pulled back too far and it led to children having too much access to too many things.

You know, Justice Barrett had this great riff at the oral argument where she talked about how like there's now so many devices in her home that like she's worried about her kids watching porn through the refrigerator.

I mean, kids can get online porn through gaming systems, tablets, phones, computers.

Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.

There's this real sense that the government needed to step in.

I do worry though, just that you know, I think that the libertarian era in the First Amendment, because again, we're not just talking about sexual speech here, we're talking about political speech, we're talking about all kinds of speech that the government wanted to ban.

We just emerged from a long period where the Supreme Court said, Government, stay out of that.

We don't want the government regulating speech.

And broadly speaking, I think that's a very good idea.

And I hope that the Supreme Court doesn't roll back on that too much.

Ian Milheiser, Vox, Supreme Court, Wild Ride, Gabrielle Burbay and Miles Bryan produced today's show.

Jolie Myers edited.

Patrick Boyd and Andrea Kristen's daughter engineered.

Laura Bullard and Devin Schwartz fact-checked the show.

I'm Noelle King.

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