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

In the Supreme Court’s oral arguments about a potentially seismic shift in 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 Shaffer, a lawyer for the adult industry group Free Speech Coalition. “It’s like the old man Playboy magazine? Do you have essays here from the modern equivalent of Gore Vidal and William F. Buckley, Jr.? “

The massive adult web portal Pornhub, in case you were wondering, does not publish essays by distinguished intellectuals. (Shaffer notes that it does host videos sexual wellness.) The question inspired a to kill of comment on social media, alongside a few jokes directed at Justice Clarence Thomas, who stated during the oral argument what you do “Playboy it was about wavy lines on cable TV.” But as funny as the quotes were, what the judges were almost a joke: how much protection do sexual content and other legal speech deserve, if hosted online?

FSC v Paxton concerns HB 1181 of Texas, which requires sites with a large proportion of sexually explicit content to verify the age of users and scientifically unproven posts health warnings about how pornography “has been shown to damage the development of the human brain.” After a lower court blocked the law as unconstitutional, the Fifth Circuit Court of Appeals allowed it to take effect. Today, both sides (as the chief deputy of the solicitor general Brian Fletcher) argued mainly if that court used the correct law. level of scrutiny to assess the risks of the law. But the arguments also touched on larger issues — including whether the evolution of the internet makes old Supreme Court decisions obsolete.

“We’re at the crossroads of some pretty significant Internet law right now,” says Christopher Terry, an associate professor of media law at the University of Minnesota.

In some ways, it’s a very familiar crossing. In the Reno v. ACLU and Ashcroft v. ACLU 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 v Paxton is the latest in a recent series of legal conundrums on the Internet, including a case over the banning of TikTok – TikTok v. Garland – was heard just last week.

“The level of sophistication and energy seemed a little lower to these arguments. I had a sense of fatigue from the justices on the problems of the Internet,” says Blake Reid, associate professor of law at the University of Colorado Boulder. “And I think the age verification issue in particular is one that the court has faced many times before.”

The current court has decided some past cases in narrow ways that do not address larger questions about the Internet. Reid thinks the justices seem conflicted about whether to do it here — say, just send the case back to the appeals court. (The US government also appeared in court to promote a middle ground between FSC and Texas, opposing the Fifth Circuit’s decision, but not all age verification laws.) “They tried to decide : do we solve the question of scrutiny, or do we get to the answer whether it is constitutional or not? and deal with him?”

There is a particularly glaring problem if the court intervenes. Those previous rulings found that 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 l The internet was changing. at some point in the future, that analysis it could also change. Justices, particularly conservatives like Alito and Thomas, have raised this possibility repeatedly today — asking how the porn landscape and age-verification technology have changed, and by implication, whether Reno and Ashcroft it might be irrelevant. “For the first time that I’m aware of, the court has actually asked that precise question,” says Terry. “He asked many times – whether these things are still good or not.”

Which brings us back to squiggly lines and Gore Vidal.

“It’s actually not that crazy of a question,” Terry says of Alito’s hypothetical, despite its oddly dated references. Texas argues that sites like Pornhub are obscene to minors, a standard that offers less legal protection and applies to works without artistic or other social value, while the FSC argues that HB 1181 would capture things like sex education videos on their network. Thomas refers to cable TV, meanwhile, to say “we’re in a completely different world” of mass access to adult content today – creating a more urgent duty to keep it away from children.

Gautam Hans, a Cornell University law professor and First Amendment expert, says overall there was no clear winner today. “In terms of the range of results, I think there is a wide range,” says Hans The Virgin. The final outcome depends significantly on how much the court decides to revisit its previous decisions. “I think there was a feeling that the technical filter is not working, or it is insufficient, or we have more evidence that this is not a good substitute in the intervening decades,” he says. This argument cuts both ways, however – why is not clear how age verification works either “I agree that the technical filter is not a panacea. I don’t think a panacea exists,” adds Hans.

Numerous states have passed age verification rules for online porn, and FSC v Paxton it could directly affect whether it withstands legal challenges. But its impact could go beyond porn. Both TikTok v. Garland and this case they deal with if the interests of the government – national security for TikTokprotect children in FSC – should cancel the freedom of expression issues. “We have two major cases in five days dealing with whether or not traditional First Amendment law applies to Internet content in the same way,” Terry says.

And many state and federal lawmakers have called for stronger age verification for social media, sometimes alongside a proposed ban on minors using it. Opening the door to porn vetting doesn’t guarantee these efforts will succeed, but Hans says it could make lawmakers much more likely to try. “I think that if the Supreme Court said that some form of age verification could be constitutional, which if the state in other situations, they would say, well, extend this reasoning to other substantive areas of internet regulation, “, he says.

For now, Hans offers a gentle suggestion to the justices. “I think Alito needs to get some more contemporary references,” he says.