The Supreme Court could decide the fate of Pornhub — and the rest of the internet

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In the Supreme Court’s oral arguments on the potentially seismic change in the Internet, the most memorable question came from Justice Samuel Alito. “One party here is the owner of Pornhub, right?” Alito asked Derek Shaffer, an attorney for the adult industry group Free Speech Coalition. “Is it like the old one? Playboy magazine? You have articles there for the contemporary equivalent of Gore Vidal and William F. Buckley Jr.?

The huge adult web portal Pornhub, if you’re wondering, doesn’t publish articles by prominent intellectuals. (Shaffer notes that He does Hosting videos about sexual health.) Inspire the question A A large number to Comment on social media, along with some quips directed at Justice Clarence Thomas, who made the announcement during oral argument “which”Playboy It was about the squiggly lines on cable TV. But as funny as the quotes were, so what What the judges were getting was no joke: How much protection does sexual content and other legal speech deserve if it is hosted online?

FSC v. Paxton It’s related to Texas law HB 1181, which requires sites with a high percentage of sexually explicit content to verify users’ ages and publish posts that are not scientifically proven. Health warnings About how porn has been proven to “harm human brain development.” After a lower court blocked the law as unconstitutional, the Fifth Circuit Court of Appeals allowed it to take effect. Today, both sides (as well as Principal Deputy US Attorney Brian Fletcher) are arguing about whether that court used the right level of scrutiny to assess the risks posed by the law. But the arguments also touched on larger questions — including whether the development of the Internet is making the Supreme Court’s old rulings obsolete.

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“We are now at a crossroads with respect to some very important internet laws,” says Christopher Terry, an assistant professor of media law at the University of Minnesota.

“We are at a crossroads on some very important internet laws.”

In some ways, this is a very familiar crossroads. in Reno v. ACLU and Ashcroft v. ACLU Following its decisions between the late 1990s and early 2000s, the Supreme Court repeatedly found online age verification laws for adult content to be unconstitutional. Moreover, FSC v. Paxton It is the latest in a series of recent internet law conundrums, including the TikTok ban case – Tik Tok vs. Garland – He heard that just last week.

“There seems to be a little bit less sophistication and energy in these arguments. I’m getting tired of the justices on internet issues,” says Blake Reed, an assistant law professor at the University of Colorado Boulder. “And I think the age verification issue in particular is an issue that the court has grappled with several times.” times before.”

The current Court has decided some past cases in narrow ways that do not address larger questions about the Internet. Reid believes the justices seemed conflicted about whether they should do that here, for example, simply send the case back to the appeals court. (The US government also appeared before the court to promote a compromise between the FSC and Texas, opposing the Fifth Circuit’s ruling but not all age verification laws.) To get to the answer whether this is constitutional or not? He says. “Can we make this not our problem in a very narrow way, or do we just need to dive in and deal with it?”

‘I felt tired of the judges on internet cases’

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There is one case that is particularly glaring if the court delves into it. Those previous rulings found that age verification systems in the 1990s and 2000s unnecessarily burdened people’s speech and that filtering software could serve the same purpose, but the court also said that if the Internet changes at some point in the future, this analysis It can change too. Justices, especially conservatives like Alito and Thomas, have raised this possibility repeatedly today — asking how the porn landscape and age verification technology will change and, by implication, whether Renault and Ashcroft It could be irrelevant. “For the first time to my knowledge, the court has asked this very question,” says Terry. “I asked her a few times – whether these things were still good or not.”

Which brings us back to squiggly lines and Gore Vidal.

“It’s actually not that crazy a question,” Terry says of Alito’s hypothetical question, despite its oddly dated references. Texas claims that sites like Pornhub are considered obscene to minors, a standard that provides fewer legal protections and applies to works that have no artistic or other social value, while the FSC claims that HB 1181 would catch things like sex education videos in Her network. Thomas points to cable TV, meanwhile, to say “we’re in a very different world” of mass access to adult content today — creating an even more pressing duty to keep it out of children’s reach.

“I don’t think there is a panacea.”

Overall, no clear winner has emerged today, says Gautam Hans, a Cornell University law professor and First Amendment expert. “In terms of the range of results, I think there is a huge range,” says Hans. Edge. The final outcome depends largely on the extent to which the court decides to reconsider its previous decisions. “I think there’s been a sense that technical filtering doesn’t work, or it’s not enough, or we’ve had more evidence that this is actually not a good alternative in the intervening decades,” he says. However, this argument has two sides, because it is not clear how well age verification works either. “I agree that technical liquidation is not a silver bullet. I don’t think there is a silver bullet,” adds Hans.

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Many states have passed age verification rules regarding online pornography, and FSC v. Paxton It can directly impact whether they are able to face legal challenges. But its impact can go beyond porn. both of them Tik Tok vs. Garland This case deals with whether the government’s interests are national security Tik Tokprotecting children in FSC – It must transcend concerns about freedom of expression. “We have two major cases in five days addressing whether or not traditional First Amendment law still applies to Internet content in the same way,” says Terry.

Many state and federal lawmakers have called for stronger age checks on social media, along with a proposed ban on occasional use by minors. Opening the door to porn verification won’t guarantee the success of these efforts, but Hans says it might make it more likely that lawmakers will try. “I think if the Supreme Court said that some forms of age verification could be constitutional, and if you were the state in other situations, they would say, well, extend that reasoning to other substantive areas of Internet regulation,” he says.

For now, Hans makes a nice suggestion to the judges. “I think Alito needs to have some contemporary references,” he says.

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