The Supreme Court Asked Some Weird Questions About Internet Porn

It’s not every day that the highest court in the land talks about the constitutional laws around pornography, but such cases have regularly made for landmark rulings. And should today’s Supreme Court arguments about an age-verification law for websites like Pornhub go down in history, future legal scholars will be treated to some bizarre lines of questioning from the justices.

SCOTUS heard about two hours of oral argument today pertaining to Free Speech Coalition v. Paxton, in which a trade association of the adult industry has challenged a Texas law mandating that porn sites must verify users’ age with government ID or similar digital documentation to prevent minors under 18 from accessing the material they host. Such legislation is increasingly widespread, and Pornhub — the leading adult site in the world — has now blocked access in 17 states rather than comply with age-verification requirements. Critics say these laws bring enormous privacy risks and violate First Amendment rights while creating a pretext for a wider crackdown on adult content and censorship of resources related to abortiongender-affirming care, safer sex, and LGBTQ+ identity.

That was the thrust of remarks from Derek Shaffer, attorney for challengers FSC, who said that the Texas law had chilling effects and completely sidestepped less-restrictive measures including parent-controlled content filters. The court’s conservative justices, however, sounded unconvinced and are seen as likely to let the law stand. Justice Amy Coney Barrett, a mother of seven, objected to the filter alternative early on, saying that “content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.”

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Things got more awkward when Justice Neil Gorsuch demanded that Shaffer state exactly how much of his clients’ content (Aylo, formerly MindGeek, the parent company of Pornhub, is a co-plaintiff) “would be considered obscene for minors.” Shaffer said it was hard to quantify this, but acknowledged it could be upward of 70 percent. (In November, following the electoral victory of Donald Trump, at a dinner gala hosted by the conservative legal organization the Federalist Society, Gorsuch made a spicy reference to an OnlyFans adult star who had owned an internet-famous pet squirrel named Peanut, whose euthanizing by the New York Department of Environmental Conservation had caused outrage, largely among the MAGA world, ahead of Election Day.)

Justice Samuel Alito then jumped in to wonder aloud if Pornhub was in any way “like the old Playboy magazine,” asking, “You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?” (A precedent discussed in this case, Ginsberg v. New York, involved the sale of “girlie mags” to 16-year-olds in the late 1960s.) Shaffer said the site did not publish material of that sort, but that Pornhub did offer “sexual wellness posts about women recovering from hysterectomies and how they can enjoy sex.” Alito then wanted to know what the “second most popular porn site” is, and expressed annoyance when Shaffer said he could not provide those rankings.

In a later stretch of the arguments, Gorsuch suggested that access to pornography by way of age verification might not be any different from requiring ID for the sale of firearms or voting, though Shaffer disagreed that these were applicable comparisons. Justice Brett Kavanaugh pressed Shaffer to admit that there are “societal problems that are created both short-term and long-term from the rampant access to pornography for children,” with Shaffer saying there was a broader discussion to be had about the internet’s effects on young people.

Speaking to principal deputy solicitor general Brian Fletcher, who argued that the U.S. Court of Appeals for the 5th Circuit should not have allowed the Texas law to go into effect after a lower court had blocked it, Justice Clarence Thomas brought up older iterations of pornography again. He seemed to suggest that the court now had to consider the present state of technology, saying, “We’re in an entirely different world, and Playboy was about squiggly lines on cable TV.” (This was an apparent reference to the brand’s premium television channel rather than the original magazine, which was meant to be scrambled for nonsubscribers, though the signal was not always effectively blocked.)

Alito seemed particularly hung up on the comingling of visual porn with literary content, as in the adult magazines founded in the 20th century. At one point, he asked counsel Aaron Nielson, representing Texas, “If a particular website has some hardcore pornography that is obscene as to minors and then it has, you know, videos of somebody reading Lady Chatterley’s Lover or something like that, can the latter be segregated?” (The erotic D.H. Lawrence novel was itself the subject of a major obscenity trial.) Nielson said this was possible, although he protested that “no Texas court has an opportunity to look at any of this.” Raising the privacy concern, Justice Sonia Sotamayor told Nielson, “My name, when I visit a website, unless I’ve prohibited the website from doing that, my viewing history, everything is automatically transferred to other people.” Nielson replied, “I don’t know the technology.” Sotamayor answered, “Well, that’s the point.”

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While the court’s conservative majority does look poised to side with Texas (and, implicitly, the other red states that have enacted age-verification laws to limit the visibility of porn and whatever online content lawmakers may deem “obscene”), it could also follow Fletcher’s recommendation to refer the case back to a lower court for further analysis. It would be something of a surprise, however, if it struck down the Texas law entirely. A ruling is expected by this summer.

According to FSC’s age-verification bill tracker, similar legislation has been proposed in New Jersey, New Mexico, Wyoming, Ohio, and Missouri. This week, the 6th U.S. Circuit Court of Appeals allowed Tennessee’s version of the law to take effect; a district court judge had previously blocked it. With these porn bills flooding the nation and triggering one legal challenge after another, it may not be long before SCOTUS finds itself compelled to weigh in on the issue again — and struggling to understand the contemporary landscape of adult content.

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