At the Supreme Court's oral arguments on potentially seismic changes to the Internet, the most memorable question came from Justice Samuel Alito. “One of the parties here is the owner of Pornhub, right?” Alito asked Derek Schaefer, an attorney for the adult industry group Free Speech Coalition. “Is it like the old one Slacker magazine? You have modern-day Gore Vidal and William F. Buckley, Jr. have equivalent essays?”
In case you're wondering, the giant adult web portal Pornhub doesn't publish essays by eminent intellectuals. (Schaffer notes that this does Host sexual wellness video.) Question prompted subsidence Of vaccine on social media, with some jokes directed at Justice Clarence Thomas, who announced during oral arguments He “Slacker It was about crooked lines on cable TV.” But as funny as the quotes were, what What the judges were getting at was hardly a joke: How much protection does sexual material and other legal speech deserve if hosted online?
FSC vs Paxton Related to Texas's HB 1181, which requires sites containing sexually explicit material on a large scale to verify the age of users and post scientifically unproven health warnings About how porn “harms human brain development.” After a lower court struck down the law as unconstitutional, the Fifth Circuit Court of Appeals allowed it to go into effect. Today, both sides (as well as US Principal Deputy Solicitor General Brian Fletcher) argued primarily over whether the Court had exercised the right level of investigation To assess legal risks. But the arguments also raised bigger questions — including whether the growth of the Internet makes past Supreme Court decisions obsolete.
“We're standing at some important Internet law crossroads right now,” says Christopher Terry, associate professor of media law at the University of Minnesota.
“We stand at the crossroads of some very important Internet law.”
In some ways, this is a very familiar intersection. In Reno vs. ACLU And Ashcroft v. ACLU In decisions between the late 1990s and early 2000s, the Supreme Court repeatedly found online age verification laws for adult content unconstitutional. on top of that, FSC vs Paxton This is the latest in a series of recent entanglements with internet law, including the TikTok ban – tiktok vs garland – he was heard just last week,
“The level of sophistication and energy in these arguments seemed a bit low. “I sensed a fatigue from judges regarding Internet issues,” says Blake Reed, associate professor of law at the University of Colorado Boulder. “And I think the issue of age verification in particular is an issue that the court has addressed. Have encountered this many times before.”
The current court has decided some past cases in narrow ways that do not address larger questions about the Internet. Reed believes the judge was indecisive about whether to do so – say, send the case back to the appeals court. (The US government also appeared in court to promote a middle path between the FSC and Texas, opposing the Fifth Circuit's decision but not all age verification laws.) “They're trying to decide The questions were: “Do we address the question about the level of scrutiny, or do we do everything we can to get an answer to whether this is constitutional or not?” He says. “Can't we make this our problem in a very narrow way, or do we just need to dive in and deal with it?”
“I felt a sense of fatigue from judges regarding Internet issues”
One particularly obvious issue is if the court intervenes. Those earlier decisions found that the age verification systems of the 1990s and 2000s unduly burdened people's speech and that filtering software could serve the same purpose, but the court also said that if the Internet changed in the future. At some point in the analysis, Can also change. Justices, especially conservative justices like Alito and Thomas, raised that possibility repeatedly today — asking how the porn landscape and age verification technology has changed, and by implication, whether Reno And ashcroft May be irrelevant. “It's the first time I know that the court has really asked that exact question,” says Terry. “It's asked several times – are these things still good or not?”
Which brings us back to Squiggly Lines and Gore Vidal.
“It's really not that crazy a question,” Terry says of Alito's fictionalism, despite its oddly dated references. Texas argues that sites like Pornhub are obscene to minors, a standard that offers fewer legal protections and applies to works with no artistic or other social value, while the FSC argues that HB 1181 in its trap includes sexual Will catch things like education videos. Meanwhile, Thomas references cable TV, claiming that “we're in a completely different world” today of mass access to adult content – making it an even more urgent duty to keep it away from children.
“I don't think there is a panacea”
Gautam Hans, a law professor and First Amendment expert at Cornell University, says that overall there was no clear winner today. “In terms of the range of results, I think there is a huge range,” explains Swan. The Verge. The ultimate outcome depends largely on how much the court decides to reconsider its previous decisions. “I think there was a sense that technological filtering doesn't work, or is inadequate, or that we've had more evidence that it's really not a good option in the intervening decades,” he says. However, this argument cuts both ways – because it is not clear How well will age verification work One of the two. “I agree that technological filtering is not a panacea. I don't think there is a panacea,” says Hans.
Many states have passed age verification rules for online porn, and FSC vs Paxton This could have a direct impact on whether or not they can face legal challenges. But its impact can go beyond porn. Both tiktok vs garland and the case concerns whether the interests of the Government – national security tiktokprotecting children FSC – Free speech concerns should be eliminated. “We've got two big cases in five days that are dealing with whether traditional First Amendment law still applies the same way to Internet content,” says Terry.
And many state and federal lawmakers have called for stronger age verification for social media, sometimes even proposing bans on minors using it. Opening the door to porn verification won't guarantee those efforts will succeed, but Hans says it might make legislators more likely to try. “I think if the Supreme Court said that some form of age verification could be constitutional, that if you're a state in other situations, they're going to say, OK, extend that argument to other important areas of Internet regulation. Expand,” he says.
For now, Hans gives a gentle suggestion to the judges. “I think Alito needs to get some more contemporary context,” he says.