Main: FILE – Members of the Supreme Court sit for a group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Oct. 7, 2022. Bottom row, from left, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan. Top row, from left, Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh, and Associate Justice Ketanji Brown Jackson. (AP Photo/J. Scott Applewhite, File). Inset: Pornhub banner at the 2018 AVN Adult Entertainment Expo at the Hard Rock Hotel & Casino on January 24, 2018 in Las Vegas, Nevada (Image by Ethan Miller/Getty Images).
A leading website of adult content asked the U.S. Supreme Court to block a Texas law requiring porn websites to verify the age of users in arguments before the court Wednesday.
The law at issue is Texas H.B. 1181, which requires internet companies whose content consists of more than one-third “sexual material harmful to minors” to “use reasonable age verification methods” to limit their distribution to adults, and to display a health warning before showing any such materials. Embattled Texas Attorney General Ken Paxton began enforcing the law in February, and shortly thereafter began a $1.6 million civil action against Pornhub for noncompliance.
Free Speech Coalition, an adult film industry association sued to block the law on both First Amendment grounds and grounds that it violated Section 230 of the federal Communications Decency Act. The district court sided with the challengers, but the conservative U.S. Court of Appeals for the Fifth Circuit ruled 2-1 in Texas’ favor.
In his dissenting opinion, U.S. Circuit Judge Patrick Higginbotham, a Ronald Reagan appointee, warned that limiting all access to material simply because it could be inappropriate to minors would be “to burn the house to roast the pig.”
“Although obscene speech lies outside the First Amendment’s umbrella of protection, not all sexual expression is obscene,” said Higginbotham, who pointed to “Marlon Brando movies,” scenes from “Game of Thrones,” “The Color Purple,” and “The Girl with the Dragon Tattoo” as inappropriate for children, but not legally obscene, as they do not lack cinematic value.
The case is now before the justices to decide what level of scrutiny applies when the regulation targets material that is obscene for children, but not necessarily obscene for adults. During oral arguments Wednesday, Justice Samuel Alito began by trying to sort out just exactly what Pornhub offers.
“One the parties here is the owner of Pornhub,” Alito said to Derek Schaffer, the coalition’s attorney. “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 question was a follow-up to Justice Neil Gorsuch’s line of inquiry attempting to determine what percentage of material at issue is “obscene for minors.”
Shaffer told Gorsuch that “not all” the material subject to Texas’ statute is obscene, as the law applies to “a wide universe” of materials that includes blogs and podcasts in addition to video footage. When pressed, Schaffer said that more than 50% of the material subject to the regulation would likely be deemed obscene for minors, but would not commit to any larger percentage.
Schaffer agreed with Gorsuch that keeping obscene material away from children is indeed a compelling government interest, but argued that the law at issue is not sufficiently tailored to that interest to survive constitutional scrutiny.
Alito’s question sought to further clarify what percentage of material is not considered obscene for children. A chuckling Shaffer denied that his clients’ material are “modern day equivalent[s] of Gore Vidal and William F. Buckley Jr.,” but said that the sites involved include information about sexual wellness, discussion of age verification and industry policies and other things that are not obscene.
Alito also pointed out that while some material regulated by Texas’ statute might not be objectionable, Netflix and other streaming services have not joined the lawsuit — an indication that the statute might not be as inclusive as the challengers argue it is.
Alito’s comments related to his seeming lack of familiarity with Pornhub drew immediate attention online. The justice has become a media magnet recently, drawing widespread criticism over the flying of an upside-down American flag at his house just after the Jan. 6 insurrection, and most recently, by admitting that he spoke with President-elect Donald Trump just hours before Trump asked the Supreme Court to delay his sentencing in the New York hush-money case.
