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June is coming to an end, which means all the most controversial SCOTUS opinions are coming out in the traditional big lump. These opinions are sharply divided, often along ideological lines, with lively dissents and concurrences--pretty enjoyable for a law nerd like me. Relevant to this thread, these cases tend to focus on big culture-war topics like abortion and gender stuff. This week saw the following:
Medina v. Planned Parenthood South Atlantic - Abortion. Congress requires States who receive Medicaid funds to, among other things, permit patients to obtain medical assistance from "any qualified provider." South Carolina receives federal Medicaid funding, but excludes Planned Parenthood from its Medicaid program because state law prohibits using public funds for abortion. Planned Parenthood files a section 1983 claim (this is important, IMO) arguing that it is a "qualified provider" and that Congress's Medicaid statute created a federal right for any qualified provider to receive Medicaid funds. The court, with a 6-3 conservative-liberal split, says "no." Gorsuch writes the majority opinion: the "any-qualified-provider" provision of the federal Medicaid statute does not create a right for medical providers to receive Medicaid funding. All it does is specify a condition with which participating States must "substantially comply" in order to receive federal funding. If South Carolina doesn't want to comply, the feds can kick South Carolina out of the Medicaid program, but that's not the same as creating a "right" to Medicaid funds. Section 1983 is only for vindication of a person's federal rights; there is no right for a provider to receive Medicaid funding from a State, so Planned Parenthood doesn't have a valid 1983 claim. Jackson writes the dissent; I didn't really read it carefully, because the majority seems clearly to have the better argument here. Everyone agrees that South Carolina could, if it wanted to, simply reject federal funding altogether. Then nobody in South Carolina would get Medicaid funding, and South Carolina wouldn't have to abide by any of the provisions of the Medicaid statute. It's hard to say that people have an enforceable federal "right" to receive Medicaid funding from a state, when everyone acknowledges that the state has no obligation to participate in the Medicaid system at all.
Free Speech Coalition, Inc. v. Paxton - Pornography 6-3 conservative opinion, Thomas. First Amendment does not prohibit Texas from requiring age-verification for pornographic websites. Kagan writes the dissent.
Mahmoud v. Taylor - LGBTQ+ Books and Lessons in Schools 6-3 conservative opinion, Alito. Religious students and parents have a constitutional right, under the free exercise clause, to opt-out of pro-LGBTQ+ curricula in public schools. Thomas writes a concurrence. Sotomayor wrote the dissent.
In my opinion, the biggest case today was:
Trump v. CASA, Inc. - Immigration BUT ACTUALLY Federal Court Procedure (sounds boring but is, IMO, super important) 6-3 conservative opinion, Barrett. 3 concurrences! 2 dissents! This is the "birthright citizenship" case: does the Court agree with the Trump administration that some people born on U.S. soil are nevertheless not American citizens? IDK! Because the Court doesn't answer that question. Instead, it addresses whether the lower federal court had the authority to issue a nationwide injunction against the Trump administration's immigration enforcement proceedings. The Court held it did not have that authority. Federal courts can only determine cases and issue binding decisions as to the parties before them, not the country as a whole. The lower court's national injunction is stayed as to any people not among the parties to the suit.
Some are saying the Court "punted" on the birthright citizenship thing, but I think the Court actually addressed a far more important culture-war issue. "Nationwide" or "universal" injunctions have been part of the playbook for activists' (especially progressive activists) lawfare for a long time. The idea is to find some sympathetic plaintiff who would be affected by a statute or executive action you don't like, shop around the whole country until you find a judge who agrees with you, and then get that judge--before the case has even been tried--to indefinitely prevent the government from applying the challenged law/regulation/action to anyone, anywhere in the country. This opinion represents a potentially huge obstacle to progressive activist's attempts to stymie Trump's immigration agenda.
Less interesting cases, IMO:
Gutierrez v. Saenz - Criminal Procedure. A lurid murder case gives rise to a pretty boring dispute about death-row inmates' standing to request post-conviction testing of DNA evidence. I can't really figure out the nuances of the Texas law at issue or the procedural history, but it looks like the Sotomayor-led majority thinks Gutierrez has standing; he has a Fourteenth Amendment liberty interest in the ability to request post-conviction DNA testing, even though the prosecutor apparently has both the right and the express intention to refuse that request in this case. Barrett concurs but chides the majority for "muddying the waters of standing doctrine." Alito, joined by Thomas and Gorsuch, dissents. Thomas, typically, offers a solo dissent on the quixotic ground that the Fourteenth Amendment has been misinterpreted by the Supreme Court since the early twentieth century; in his view, the "liberty" interests protected by the 14A do not include state-created entitlements like Texas' post-conviction DNA testing procedure. My read: SCOTUS lets a death-row inmate file a doomed, pointless post-conviction motion that doesn't have any hope of success but will probably delay his execution for a few more years (Gutierrez was convicted in 1998).
Riley v. Bondi - Immigration/Deportation. Deportation is a hot-button topic right now, but this opinion about filing deadlines and the distinction between claims-processing rules and jurisdictional requirements is too dry for me to get worked up about. Perhaps notable for the fact that Gorsuch broke from the conservative majority to join, in part, Sotomayor's dissent. Pretty boring overall!
There were others, but they don't have as much culture war salience as the above, IMO. I meant to do a longer write-up, a little paragraph for each case, but I'm too tired ... sorry
How did this case come about to begin with? Is Texas just requiring the same sort of "age verification" that's existed since the 90s (the website says are you 18 and you click yes)? If so, how was it possibly worthwhile for FSC to sue over that?
The specific law here holds that a "commercial entity" (some carveouts for Google) that serves material on the internet "more than one-third of which is sexual material harmful to minors" must use either commercial or government identification of age, or be subject to fines up to 10k USD per day plus 250k if a minor sees it. There's pretty widespread potential to interfere or discourage adult-to-adult speech that is only obscene to minors, or even some speech that isn't obscene at all so long as it comes from one of these companies.
There's also a compelled speech problem in the original bill, 14-point font inclusion of a substance addiction help line level. This is currently blocked, though it had a weird period where that block was under an administrative stay for nearly six months.
Presumably, all sexual material intended to arouse is deemed "harmful to minors"?
I would argue that while presenting unsolicited sexual material to either adults or minors can indeed be harmful (to some degree -- I remember seeing porn ads when I was downloading cracks for games at age 12 or 14, and mostly went eeeewww and got on with my life, but it did not traumatize me. Getting DMed a dick pick would certainly be worse, though), things are often different when users actively search for such content.
Sure, there are things which are likely harmful to the person searching for it, a 10-yo searching for rape or beheading videos is probably better off not finding any. But I do not think that any person of any age or gender who is searching for "naked woman" is likely to be harmed by pictures or videos of naked women, even if they are sexually suggestive.
Quite frankly, I believe that sexual content consumed by minors is too influential to leave it to chance and adult entertainment companies targeting an adult audience. The sooner we accept that the effect of age verification laws is not that horny teenagers will not view sinful material, but at best that they will learn how to connect to a VPN service, the sooner we can start producing more age-appropriate porn for minors.
I do not think that viewing PIV sex on video after searching for it is intrinsically harmful. The stuff which is harmful is all the stuff where porn differs from what one would recommend as sex acts for beginners. A median porn video teaches a teenage male that of course a woman will be enflamed with desire as soon as you touch her, enthusiastically give you oral sex for a while, then be ready to get fucked however hard you want to fuck her, then happily switch to anal and finally let you cum on her face. Communication about consent, boundaries, or birth control? Nada (except for BDSM porn, which typically discusses boundaries explicitly on camera). She implicitly consents to everything, has no boundaries and is solely responsible for contraception. Getting her off? She just gets off being used by you, man, no need to learn anything about female anatomy or psychology. Pillow talk? Just call her a dirty whore.
Then you have all the kinks which are mainstream in porn. Incest? Super hot. Unhealthy power dynamics? "I would do anything to get a passing grade in your class ..." Spying on women? When caught, they are flattered and will have sex with you. Respecting your partner? Nah, they like to be degraded. Now, there are plenty of kinks which are fine between consenting adults who are into them. But the context "this is a thing which most women are not into" is generally missing in porn.
Just hire some 20yo porn actors and make them act out healthy sex scenes (where the actors play a couple (or actually are a couple), discuss boundaries, contraception and all that), put them on the web in 4k (or even better, find popular but healthy sex tapes produced (semi-)commercially and just buy the rights) and tell the minors in sex ed "it is actually normal and healthy to be interested in how sex works, if you are interested here are some videos which are more realistic than what you find on pornhub.
Sure, some will still prefer to watch gangbangs in 480x320, and for a few unlucky ones the good porn might actually be a gateway to the mainstream stuff, but by and large this will do much more to prevent minors from getting wrong ideas about sex (or see seriously disturbing stuff because they were curious how sex looks) than Texas just making the big US porn vendors do age verification and pretend that this will prevent any horny teen from watching porn.
But my suspicion is that the Texas move was never about protecting minors in the first place, it was about getting the filth off the Texan internet by pretending to care about minors seeing boobs and dicks.
Suppose we invent a new and improved form of heroin. Unlike normal heroin, you can't overdose on it, it doesn't cause chemical dependency, you won't catch anything from taking it because it comes in pill form. It also costs basically nothing. Like heroin, consuming it feels really, really good, significantly better than 99% of other experiences, and it puts you in an incapacitated stupor, often for between 1-3 hours a pop. Some people want to try to keep children and teenagers from having unrestricted access to this drug. Do you think they have a valid concern?
Are you implying that masturbation (1) feels significantly better than 99% of other experiences, (2) puts you in an incapacitated stupor for 1–3 hours, and (3) can be performed as many times per day as you want, just like a real drug can be taken? If so, I think you're exaggerating a little too much.
I mean, masturbation pretty clearly does feel really, really good. It, uh, results in an orgasm.
See response here.
I guess I like orgasms more than you. Or maybe you get much more enjoyment out of videogames than I ever have.
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We're talking about porn consumption, not masturbation.
...One of the best porn-related pieces of advice I've ever seen is from The Last Psychiatrist:
...He gives this advice, because he thinks people need it. Why do you suppose he thinks that?
I've been depressed for a few years, so I may be misremembering the comparative enjoyment. But, IIRC, before I became depressed, playing video games was a much more reliable source of enjoyment than masturbating to a jade-like beauty, and fapping was merely an extra bonus that could be quickly extracted at the end of the day without requiring me to invest hours of time into it (but still requiring a significant amount of annoying arm exercise).
Based on personal experience, I assume that the meme is a gross exaggeration and the typical person engages in, not two-hour edging/gooning sessions, but 30-minute fap/schlick sessions.
It takes all sorts, I suppose. The meme is not an exaggeration, though, and the phenomenon is widespread enough that it is a meme and you have heard of it.
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