GianCarlo Canaparo
In January, the Supreme Court will hear a free speech case that raises a surprisingly difficult question: can states force pornographic websites to verify that their users are over 18 years old?
Anyone not familiar with the Supreme Court’s complex obscenity jurisprudence probably thinks that the answer is an easy “yes.” However, one hundred years of jurisprudence untethered from the Constitution makes the question difficult. Even more difficult is the question of how to reattach that jurisprudence to the Constitution.
Those questions arise in the case of Free Speech Coalition v. Paxton. The name is curious because the plaintiffs are producers, distributors, and performers of pornography, not traditional free speech defenders. The pornographers read the Supreme Court’s obscenity jurisprudence as extending full free speech protections to their work. For that reason, they sued Texas after it passed a law requiring pornographic websites to “use reasonable age verification methods” to make sure that their users are over 18. They argue that that law impermissibly “chills” peoples’ access to free speech.
The pornographers’ legal argument is stronger than most non-lawyers would probably assume, which is why Texas’ law carefully targets “obscenity” as defined by the Supreme Court in a 1973 case called Miller v. California. Miller held that obscenity is not protected free speech and is present in media that, according to “contemporary community standards,” “appeals to the prurient interest,” depicts sexual conduct in a “patently offensive way,” and “lacks serious literary, artistic, political, or scientific value.”
Parents Objecting to Pornographic Material in School Libraries Aren’t “Book Banners”
Miller was the Court’s attempt to erase its embarrassment from Jacobellis v. Ohio, which failed to define obscenity and gave us Justice Potter Stewart’s famous quip, “I shall not today attempt to further define [obscenity]…But I know it when I see it.” Although Miller delivered something more coherent than Justice Stewart, » Read More
https://www.heritage.org/courts/commentary/the-courts-obscenity-jurisprudence-due-revision
