The Supreme Court upheld a Texas anti-pornography law on Friday that is nearly identical to a federal law it struck down more than two decades ago.
Rather than overruling the previous case — Ashcroft v. ACLU (2004) — Justice Clarence Thomas’s opinion spends at least a dozen pages making an unconvincing argument that Friday’s decision in Free Speech Coalition v. Paxton is consistent with the Court’s previous decisions. Those pages are a garbled mess, and Thomas spends much of them starting from the assumption that his conclusions are true. All three Democratic justices dissented.
That said, Free Speech Coalition makes two very significant changes to the Court’s approach to free speech protections for pornography, and these changes are clearly stated in Thomas’s opinion.
In Ashcroft, the Court struck down a federal law that basically required pornographic websites to screen users to determine if they are over the age of 18. One reason for this decision is that it was far from clear that websites were actually capable of performing this task. As the Court had acknowledged in an earlier case, “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.”
This mattered because, long before the internet was widely available, the Court had established, in cases involving phone sex lines and televised pornography, that “the objective of shielding children” from sexual material is not enough “to support a blanket ban if the protection can be accomplished by a less restrictive alternative.” These decisions established that adults have a First Amendment right to view sexual material, and this right cannot be diminished in an effort to keep that material from children.
Accordingly, in Ashcroft, the Court ruled that the federal age-gating law must survive the toughest test that courts can apply in constitutional cases, known as “strict scrutiny.” Very few laws survive this test, and the law at issue in Ashcroft did not.
The Court’s ruling in Free Speech Coalition, however, changes the rules governing laws that seek to block minors’ access to pornography, but which also may prevent adults from seeing that material. While much of Thomas’s opinion is difficult to parse, one significant factor driving the Court’s decision is the fact that technology has evolved. The internet, and internet pornography, is much more widely available than it was two decades ago. And it may now actually be possible to reliably age-gate pornographic websites.
Now, laws like the one at issue in Free Speech Coalition are only subject to a test known as “intermediate scrutiny” — a test which, as the name implies, is less strict. Under this somewhat less rigid framework, an anti-pornography law will be upheld “if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.”
According to Thomas, in Free Speech Coalition, the “important governmental interest” at issue in this case is “shielding children from sexual content.”
Intermediate scrutiny, it should be noted, is not a paper tiger. Laws that discriminate on the basis of gender, for example, are typically subject to intermediate scrutiny. And most of these laws are struck down. But the new rule announced in Free Speech Coalition gives states broader leeway to restrict access to pornography.
Additionally, Thomas’s opinion also implies that adults have no legal right to keep their decision to view sexual material private.
The plaintiffs in Free Speech Coalition argued that “the unique stigma surrounding pornography will make age verification too chilling for adults.” Pornography users are likely to be reluctant to submit their ID to a site like Pornhub, for example, out of fear that the website will be hacked. This is likely to be especially true for people who are trying to keep their sexual orientation a secret, or people who could face serious career consequences if their private sexual behavior became public.
But Thomas’s opinion is exceedingly dismissive of the idea that privacy matters in this context. “The use of pornography has always been the subject of social stigma,” he writes. But “this social reality has never been a reason to exempt the pornography industry from otherwise valid regulation.”
It’s unclear just how far Thomas, or the rest of his colleagues, would take this conclusion. Could a state, for example, require everyone who wants to look at a pornographic video to submit their names to a government agency that will publish them on a public website? At the very least, however, Free Speech Coalition suggests that lawyers challenging anti-pornography laws may no longer raise privacy arguments as part of their challenge.
The Court’s decision is likely to make life miserable for judges
Free Speech Coalition makes clear that the era when the courts struck down nearly all laws regulating sexual speech is over. The government will now play a larger role in regulating online content depicting sex.
There is a very good reason, moreover, why pre-Free Speech Coalition courts took a libertarian approach to sexual speech. Although the First Amendment has been part of the Constitution since the late 1700s, it was largely meaningless for most of American history. And the government routinely prosecuted people for saying things, or for producing art, that regulators or law enforcement found objectionable. Under the 1873 Comstock Act and similar state laws, for example, people were routinely jailed for selling erotic literature or nude art, even works that are now widely considered masterpieces.
This regime began to change in the middle of the twentieth century, when the Court started protecting speech of all kinds, including both sexual and political speech. In Roth v. United States (1957), for example, the Court established that sexual speech and art could only be banned if the “average person, applying contemporary community standards” would determine that “the dominant theme of the material, taken as a whole, appeals to prurient interest.”
Later Supreme Court decisions tweaked this rule, and they also focused on whether the challenged speech or art has “serious literary, artistic, political, or scientific value.” Speech that does have such value is protected.
All of these legal tests, however, are quite vague. And the question of whether a particular film or photo has serious artistic value is rather obviously in the eye of the beholder. Hence Justice Potter Stewart’s infamous statement that he may not be able to come up with a coherent legal framework to determine what sort of material should be banned, “but I know it when I see it.”
The result was that, for much of the 1970s, the justices literally had to meet in the basement of the Supreme Court to watch pornographic movies that were the subject of prosecutions, in order to make subjective calls about which movies should be protected by the First Amendment.
Those movie days, as described by Bob Woodward and Scott Armstrong in The Brethren, were thoroughly humiliating experiences. Justice John Marshall Harlan, for example, was nearly blind during many of these screenings, so one of his law clerks had to describe what was happening on the screen to him — often prompting Harlan to explain “By Jove!” or “extraordinary!”
Meanwhile, filmmakers would often try to work within the Court’s “serious literary, artistic, political, or scientific value” framework by including political discussions or similar matters in a movie that was otherwise about sex. According to Woodward and Armstrong, for example, one such film ended with a speech “on the comparative merits of Communist and Western societies.”
The point is that, once the Court decided that some sexual speech is protected by the Constitution, it was extremely difficult to come up with a principled way to distinguish art that is too sexy to be protected by the First Amendment from art that is not. And the Court’s attempts to do so only made a mockery of the justices.
Eventually, the combination of Supreme Court decisions that read the First Amendment broadly, and technologies like the internet that made it very difficult to suppress sexual speech, ushered in an era where pornography is widely available and mostly unregulated.
In upholding the Texas law at issue in Free Speech Coalition, the Court could end this era. But the justices are likely to make their own lives miserable as a result. Texas’s law incorporates many of the Supreme Court’s past pornography decisions, only restricting speech, for example, that “lacks serious literary, artistic, political, or scientific value for minors.”
Thus, if Texas wants to apply this law to Pornhub, some poor judge will have to watch much of the content on that website to determine if it has literary, artistic, political, or scientific value — and whatever that judge decides, their decision will be appealed to other judges who will have to engage in the same exercise.
Justice Thomas and his colleagues, in other words, should probably install a popcorn machine in the Supreme Court building, because they’ve just signed themselves up to recreate the humiliating movie days of the Court’s past.
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