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Culture War Roundup for the week of January 23, 2023

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"Oi, Bruv, Can I See Your Porn Loisence"

I've made this joke a lot in relation to the serially-delayed and maybe abandoned UK age verification mandate, so it's probably worth talking about Louisiana doing it for real:

Act 440 took effect on Jan. 1 to create a cause of civil action for Louisiana parents whose children access pornographic websites that do not utilize an age verification process. The legislation, sponsored by Rep. Laurie Schlegel, R-Jefferson, passed both chambers of the Republican-controlled Legislature in June with little debate and only a single nay vote — from Rep. Mandie Landry, D-New Orleans...

Last week, Schlegel took to Twitter to defend the law, which has faced criticism for restricting personal freedoms, as well as questions about legality and enforcement.

"This law had bipartisan support and passed almost unanimously in both the House & Senate with close to 50 co-authors, including Democrats and Republicans. It was not a Republican win but a win for children in Louisiana. This bill is about protecting children not limiting adults," she posted. "And thankfully, the technology today allows us to not only protect children from the dangers of online pornography but also protect the privacy of those adults who want to view this material."

Text of law here: it requires porn sites -- or at least most sites with more than 33% of their content matching the law's definition of 'harmful to minors', based around a modified Miller obscenity test -- to use 'reasonable age verification methods', or be liable for unspecified damages and court costs.

In its defense, the law does prohibit age verification companies from retaining "identifying information" (with again unspecified civil damages) after allowing access. For a variety of technical reasons such enforcement would be incredibly impractical, though: it's not clear how a person would find out, would find out who actually did it, and then show damages, without getting any complaint dismissed to early for meaningful discovery, or even with enough certainty to justify starting a lawsuit.

There's a pretty clear and wide potential for harm. Yes, yes, getting your porn tastes revealed to the general world isn't as embarrassing as it might once have been, even as the potential for Implications remains. And while I might trust the average incredibly-sketchy-porn-site or age verification company to secure my personal data that they're totally not supposed to be storing better than, say, Home Depot or EquiFax, that's kinda damning with faint praise. For someone that wants to host material -- increasingly, a necessity to speak in any meaningful sense -- this is a pretty tremendous landmine: not only do I get to wager what a Louisiana court might consider prurient or how it might do math, or what the risks of a teenager even finding my material might be, but also such fun imponderables such as "what impact might an unsuccessful lawsuit have on my job or position in the community".

It's... also not clear how this is going to work, at a pretty fundamental level. There are some deep constitutional questions regarding compelled and anonymous speech, and some annoying legalistic ones like the dormant commerce clause, and this is the sort of thing that's had SCOTUS involved before. And then there's annoying problems like grammar issues, whether the exceptions meant for exclude CDNs or avoid supremacy clause problems with CDA230 would also exclude booru or tube-style sites that do not create content, or how ads get handled period. Nevermind how much of a clusterfuck that "33%" threshold is going to be for all but the most overtly and specifically porn-focused sites: do courts have the infrastructure to handle this when even specialty sites can have millions of files in content? What happens if it changes, and how quickly does a site need to track changes? If a site decides to host a million pages of lorem ipsum or an old copy of wikipedia to pad their SFW side?

((Example: e621 has 3.3 million uploaded images, with 26% of them "Safe" and 20% "Questionable" ratings, though this goes by different definitions than what the law here would involve, or even what non-furries would necessarily define them to be. Do I want to make bets on how the law would go there? No, because the answer is 'don't get in an incredibly humiliating interstate civil suit if you can avoid it'.))

Some is just that none of the authors of the law nor the people promoting it can agree on what, exactly, the harms or scales of damages are. Peter Gheil points to Aella as the prototype of the 'who-cares' side of the progressive and libertarian perspective, and there's a lot of Culture War in that position existing, but there's a lot of positions outside of it (sfw meme). At the other end, there's people who want the extremely unsexy nudity excised from Maus, or object to Gender Queer over one comic panel out of hundreds of pages having portraying someone performing 'oral sex' on a dildo. Presumably Heinlein's later works fall somewhere in this spectrum, or outside of it.

But there's a slightly awkward situation where, in addition to the Baptist-and-Bootlegger coalitions, there's a separate compromise where this sort of law (Utah is considering a similar one, and California's regulatory apparatus might accidentally invent it by parallel means) is vague enough to marry people who simply don't want their ten-year-olds stumbling across the weirdest porn possible after typoing a web search, those who think a seventeen-year-old seeing a nipple will immediately and irrevocably twist his or her sexual orientation, the TradCaths who think showing ankles can lead someone down the path of temptation, the feminists that think showing PIV or bondage will push men to rape or domestic violence, and the feminists that think maybe sadomasochism should start in the late teens, along with every possible or plausible position in-between. Actual policy implementations are going to get a little rougher when practice comes about.

On that bootlegger side, some sites have voluntarily complied: MindGeek-related sites (such as PornHub) have begun requesting Louisiana clients to provide driver's licenses to the third-party LAWallet (which is its own weird mess). MindGeek had been an early adopter for that currently-mothballed UK version and has done some technology work on the verification side, along with being a pretty high-profile target, so it's not a huge surprise, though in turn it's far from clear how many other companies would want to work with them. Or comply at all.

In turn, though, it's hard to not think about where this might go down the road. Many of the objections to porn here generalize beyond it, even if a number of the advocates of restrictions don't (currently) want to expand them. China has recently pushed 'video game addiction' as a concept to the point of restricting gameplay hours, and a general 'social media addiction' is a pretty common political talking point (and tbf, may not even be wrong), and there's been an increasing (and tbf, not even wrong) push to talk about how the human brain doesn't really finish maturing until whatever age the immature-brained speaker wants a matter to add restrictions to.

And a tool to bring identity to a wide swath of internet activity is a pretty nice weapon to leave around waiting for someone to be tempted by it.

This is why SCOTUS should have taken the opportunity to craft a remedy for pre-enforcement challenges of laws that create civil liability. As it is now even if MindGeek thought the law was unconstitutional (I think they'd have a good case) they can't do anything about it until someone attempts to bring an enforcement action. Post SB-8 legislatures can just create these legal Swords of Damocles to hold over the heads of people engaged in constitutionally protected activity that they have no way to proactively remove.

If I recall, SCOTUS didn’t say “this is fine.” They just said we want this to work up through the circuits in a less expedited manner.

They definitely ruled that there was no available pre-enforcement relief, practically if not explicitly, which is all I'm contending.

I don't think that's an accurate summary :

The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.

or

Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court, everyone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage.

The crux was instead that the Court turned away the sort of response that the plaintiffs would have found sufficient, whether in a pre-enforcement context or otherwise. The plaintiffs wanted -- with reason! -- an injunction binding either all court clerks from accepting, or all individual Texans, from filing cases.

That's why I said "practically if not explicitly." The only entities SCOTUS allowed the pre-enforcement challenge to go ahead for were a set of state licensing officials. No injunction on them would actually have any impact on the civil suits that are at the core of SB8.

SCOTUS only allowed the pre-enforcement challenge against state licensing officials in that case. But even Thomas pointed to extant state pre-enforcement challenges leading to preliminary injunctions by name, and that specific case he cited (correctly, imo) resulted in a state-wide declaratory judgement before the end of the year focusing on the procedural aspects and edit: eventually got a temporary injunction against the named plaintiffs and affiliates in that case (though I can't find the current disposition).

Fair enough, I guess I'm reluctant to farm out the vindication of federal constitutional rights to state courts (though I recognize that has been common practice). I suppose state courts (at least in Texas) seem to have the benefit of issuing declaratory judgements.