Is Pornhub like Playboy?
Justice Samuel Alito wanted to know.
It would have been a strange thing for him to ask, had he not posed the question at Wednesday’s hearing over a Texas law requiring age verification to access sexual content online.
An adult industry trade group and others challenged the law on constitutional grounds, arguing that the verification process imposes too great a burden on adult access to legal content. Texas says it’s trying to protect kids in a public health crisis of pornography.
Against that backdrop, Alito asked the industry lawyer before the court what percentage of the material on the Pornhub website “is not obscene as to children.”
“Is it like the old Playboy magazine? You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?” the GOP appointee asked in what The New York Times called a “mocking tone.”
“Not in that sense,” replied the lawyer, Derek Shaffer, “but in the sense you have sexual wellness posts about women recovering from hysterectomies and how they can enjoy sex — that’s on there.”
The back-and-forth — you can read a transcript of the hearing here and listen to it here — highlights the degree to which the justices are tasked with applying lasting constitutional principles to new and developing technology.
The percentage aspect is relevant to the Texas law because it applies to sites where more than one-third of content is “sexual material harmful to minors.” That led the challengers to argue, among other things, that the law is “overinclusive” because it applies to sites with “up to two-thirds material that is not obscene even for minors.”
While the industry might not be able to count on Alito’s vote, it’s unclear what the court as a whole will do with the case.
Technically, the question presented to the justices isn’t whether the Texas law is constitutional, but rather which legal standard courts should use to analyze the law. The 5th U.S. Circuit Court of Appeals used a standard deferential to the government, called “rational basis” review, when it undid a trial court’s preliminary injunction that had blocked the law. The challengers argue that the more demanding “strict scrutiny” standard should apply.
One option is for the high court to rule only on the standard that applies and then send the case back to the 5th Circuit to continue litigation there, without deciding whether the law should be blocked.
The court’s decision could have vast First Amendment implications beyond the porn context, though sympathy for Texas’ stated goal of child protection and antipathy toward pornography generally could lead to an opinion that at least attempts to confine any free speech restrictions to this context.
At this point, whether such an attempt would succeed is a hypothetical two steps removed — not yet knowing what the court will do, much less the consequences — but we should have the decision in the case, called Free Speech Coalition v. Paxton, by July.
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