Pornographers Before the Supreme Court

Justice Potter Stewart famously offered this to define pornography: “I know it when I see it.” That may have worked fine for Justice Stewart, but how about for the rest of us? And in particular, could we keep at least the kids from seeing it and knowing it? 

Texas is trying. The state’s legislature passed a law, H.B. 1181, which requires porn sites to verify the ages of their users. Requiring age verification to access online pornography has become a popular move: eighteen other states have similar laws on the books, covering approximately 130 million Americans. But the pornographers sued Texas and recently brought their argument to the U.S. Supreme Court in Free Speech Coalition v. Paxton. They argued that the Texas law violates the First Amendment. 

The pornographers, calling themselves the “Free Speech Coalition,” argued, among other things, that the supposed “sexual expression” that occurs in pornography goes back to the American founding—see, they allege, the fact that Americans were then reading “sex manuals” like Aristotle’s Masterpiece. Neither by Aristotle nor a masterpiece, it was also not erotic. The publication was rather a hodgepodge of folklore and information about pregnancy and childbirth. In fact, pornography was not domestically produced in America until the 1840s, as Michigan State law professor D. Adam Candeub wrote in his amicus brief to the Supreme Court in the case. (Disclosure: I also signed it.) 

So it is ironic that the pornographers cited Aristotle’s Masterpiece in an attempt to bolster their argument. Let us also note here that there is an actual masterpiece referenced in the pornographers’ argument, and apparently without irony: Dante’s Inferno. In contrast to these referenced works, however, what children see readily in today’s online pornography is far more grotesque: rape; statutory rape; bestiality; sexual activity involving bondage, slapping, strangling, and/or urine or feces. On average, children used to be first exposed to pornography at just eleven years old. By eighteen, about 73 percent of children had seen it. And that was all before the widespread use of the smartphone. A newer trend in what pornography today portrays, beside the other ones already mentioned: incest. If the vileness is legion, so are the research findings of porn’s ruinous effects. Pornography makes for a grotesque warping and deformation of human beings—but particularly of children.

Pornography: Protected under the First Amendment?

Obscenity in earlier eras most certainly did not enjoy constitutional protection in our land. Technically, it still doesn’t. But here’s the trick: what constitutes obscenity has changed over time. The landmark case Miller v. California (1973) sets up a three-part test: a work is obscene if (1) the average person would find it to be appealing to the prurient interest, (2) it depicts sexual conduct in a patently offensive way, and (3) the work as a whole “lacks serious literary, artistic, political, or scientific value.” It’s an awfully narrow way to define obscenity. Miller has since set up a high bar for obscenity, and prosecutions for it have been sparse. 

So here we are in a world where so much porn, crazily enough, does not meet the definition for obscenity—because of that awfully high bar in Miller—and is protected under the First Amendment. Free speech, in its better reading, has to do with man’s nature as a reasoning being who participates in the divine—in the Logos. The word “logos” means both speech and reason, and the pursuit of truth through free speech befits such a reasoning being. Free speech as a protected right in service of the pursuit of truth is well and good, and laws promulgated on its behalf are most needed and welcome.

Pornography parading as free speech, however, is a category mistake. There is no pursuit of truth in porn—only vice. 

Still, for minors, the law is different. Neither pornography that involves children nor children’s access to pornography is protected under the First Amendment. Under Ginsberg v. New York, for example, age restrictions for the sale of “girlie magazines” were upheld under what courts call the “rational basis” standard, a lenient standard of review that tests whether the legislature had a legitimate conceivable purpose for enactment and almost always results in the law at issue passing constitutional muster and staying on the books. 

One complication is the precedent of Ashcroft v. ACLU (2004). In that case, the Court considered a federal law called the Children’s Online Protection Act (COPA) that regulated obscene materials and required age verification. The Court ruled that because the First Amendment was implicated as to adults’ access to pornography (because the Court framed restricting adults from porn as a content-based speech restriction), the “strict scrutiny” standard applied—a heightened standard requiring that the government not only have a compelling interest, but that it use the least restrictive means to achieve that interest. Strict scrutiny almost always results in the law at issue being struck down as unconstitutional. The Court said in Ashcroft that content filtering was a less restrictive alternative than age verification, and that was fatal to COPA; it might be to the Texas law as well.

Letting Hell Break Loose—If Online

So here’s a funny situation for our time. Were there a porn magazine shop at the street corner or a strip club in town, and children wanted to get in—or even if children wanted to watch an R-rated movie in a movie theater—our law forbids children from entering. The business must check their IDs at the door, and minors are turned away. But change the scenario and put all these places online and in the palms of children’s hands, and there is no such requirement for age verification.

Which standard of review should then apply to the Texas law? Rational basis as in Ginsberg? (That’s what the U.S. Court of Appeals for the Fifth Circuit ruled, which was the basis for the Free Speech Coalition’s appeal to the Supreme Court.) The Fifth Circuit’s application of the rational basis standard makes sense because, well, minors don’t have a First Amendment right to view porn, and it is precisely that which Texas is attempting to regulate. If rational basis applies, we can expect the pornographers to lose and the Texas law to stay on the books.

Or strict scrutiny as in Ashcroft? During oral arguments, the pornographers said they agreed that the government had a compelling interest in keeping porn from children (the first prong of strict scrutiny). Well, that’s good to know. But the fight is rather centered around the second prong of strict scrutiny: least restrictive means. Does the Texas law, like COPA, burden adults’ constitutionally protected speech, exercised through accessing porn by having to verify their ages?

The pornographers argue yes, and impermissibly so. A primary reason for it, they argue, is because parental filters are around, and that filtering is a less restrictive means than age verification—which was exactly why COPA didn’t see the light of day. But as amicus briefs and some of the justices point out, twenty years of experience since Ashcroft have shown us that filters don’t work in shielding children from pornography. To be sure, filters may work to some extent, but they don’t achieve the kind of protection that the government is after with its compelling interest, as Justice Kavanaugh pointed out during oral arguments. 

Put another way: content filtering can’t be the “least restrictive means” if it’s not a means at all, honestly understood. To get from Los Angeles to New York City, we might say a man could drive, fly, or take the train. But could he crawl on his hands and knees instead? Well, he could, sure. But in all honesty, that’s not practicable. It would not be dishonest for us not to list “crawling” as a means of getting there. 

If parental filters are taken off the table as a means, age verification, done reasonably as Texas has done here, ought to be permissible as the least restrictive means needed for strict scrutiny. Thus Texas in oral arguments contended that this law ought to withstand even strict scrutiny, which would allow it to stay on the books. Good for Texas. 

But what of trade-offs? Is there a possibility that pornography and art can be found in the same work? Say a movie for Netflix has elements of both pornography and art. Would strict scrutiny for the Texas law spill over to cover such a work? As a corollary, might it spill over so much as to cover even works that have no obscenity at all? Going the other direction, there is also the under-inclusivity argument: What of pornographic elements existing in other corners of the Internet, such as Reddit or X, that are not covered by this law? Or what of children downloading virtual private networks (VPNs) to change their IP addresses to circumvent the age-verification requirements of porn websites in the state?

Robert P. George observed that we ought not to deceive ourselves that “art cannot be pornographic or that pornographic art cannot degrade.” We also ought not to pretend that there would be no cost, particularly to our children, in protecting such works under the First Amendment. We ought to draw the line somewhere. As far as lines go, the line drawn in Texas seems a modest one. 

Incidentally, it is also an answer to the charge that the law is under-inclusive. A line drawn, however modest, is at least a line drawn —a welcome development after having no line online for far too long. As others have argued, we ought not to let the perfect be the enemy of the good.

Last, as far as lines go, folks generally know which is which. So Professor Candeub offers an admirably simple and effective test for obscenity: To which would guys selling their sperm for a quick buck at a fertility clinic turn? Dante’s Inferno? Or PornHub? 

Speak of the devil, Inferno famously depicts souls wasted and wasting away. Wouldn’t demons like nothing more than to have those entrapped in porn waste away their full and flourishing humanity? Porn is anti-human. In a better reading of the First Amendment, there would be no protected right in pornography—full stop. But until then, may the Supreme Court agree with Texas to protect at least children from at least porn websites. 

Image by Clinton and licensed via Adobe Stock.