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A federal judge has issued a preliminary injunction against at Texas bill aimed at curbing porn access by minors. According to the text TX House Bill 1181 requires porn websites employ "reasonable age verifications methods" and display a series of notices about the alleged side effects of porn consumption (page 4 of the pdf). (I say alleged because I haven't read enough of the research to have made up my mind on the subject.) I went into this thinking the judge was issuing the injunction based on compelled speech grounds, the health warnings. However, as I read along, there are some head scratching lines. For example from page 26-27, under the heading "The Statute is Not Narrowly Tailored:
I can't put my finger on why, but this feels Kafkaesque in its logic here to me. "Your law isn't doing enough so it's an overreach." I'm almost certain if Texas had put in requirements about social media or search engines, the court would have struck that down as being overreaching. Lawyers, help me understand why I'm wrong here.
Outside the legal logic and jurisprudence at play here, I'm a little unsure of where I fall on the ethical issues at play here. I don't have anything against porn as long as everything going on is consensual, legal, and not, for lack of a better term, too weird. (I don't really know where that line is and I don't think it's terribly germane to the discussion.) I don't really think age restrictions are unethical. I certainly don't buy that they're too difficult to implement, since gambling sites require age verification and have been able to pull that off. (Web devs, help me understand why I'm wrong.) Nor am I really sure I buy the privacy arguments either here. I guess people just paid cash for their porn back in the day but there was still someone behind the counter who knew that you bought it and, in theory, could be compelled to testify that they saw you buying Naughty Nurses 7. (No idea what kind of court case would hinge on that information, but it's theoretically possible AFAIK.)
As far as the health warnings go, I'm not sure where I fall on that. On the one hand, I don't generally favored compelled speech, whether it's my coworkers asking for me to give my pronouns, trigger warnings, the government telling me I have to say the pledge of allegiance, people telling me I have to stand or kneel for the national anthem. On the other hand, I'm very much in favor of strict consumer labeling laws, since customers can best express their market preferences when they have the most information about their competing choices.
It’s worth noting that Texas is not the first state to have done this- pornhub actually pulled out of Utah and Louisiana over the issue- and also has access to a captive appeals court. Nor is this the biggest-ticket item blocked by a federal judge from becoming law in Texas, that’s probably the prevention bill.
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It seems to be the fairy standard argument of 'if you cared about X, you would be doing Y; since you're not doing Y, I am suspicious that X is what you actually care about.'
Like, this isn't the situation here, but: Imagine someone tries to pass law that says 'Cigarettes cause cancer, therefore Marlboro has to put warning images of diseased lungs on all their packaging'. And you ask 'You mean all cigarette brands need to do this?' and they say 'no, just Marlboro'. You might think this was a little weird, and think to ask whether the person sponsoring this legislation owns shares in Philip Morris or Camel.
In the platonic ideal where they prevent all children from ever seeing any porn at all, and no adult is ever inconvenienced by them in any way, sure.
I think the reality of regulations like this would be more like kids can still see as much porn as they want through a million different venues that adults barely understand (like, you can just download a stable diffusion package and type in your own prompts to generate infinite porn images already), adults will be annoyed all the time as these things get in the way, it will create overhead for all of these sights and serve as a chilling effect that keeps people from entering the market or doing anything that might piss off a politician due to the nebulous threat of prosecution, and the law will only ever be enforced unevenly as a cudgel against political opponents or as a campaign stunt.
Which I think is sort of what the judge is getting at here, that the likely outcomes of a law like this are a lot of impacts that some people might want but do not include 'kids can't see porn anymore'.
I imagine that's because you already have to give those sights some type of banking or payment information to do transactions, so you're already heavily committed to that sign-up process and privacy loss on those sights. Whereas free porn sights currently have no such overhead and it would be a huge change to their business model (possibly just making it impossible) to add those new requirements.
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Since the court found the law implicated a fundamental right (freedom of speech) and constituted a content based restriction on speech (it limited access to speech based on its pornographic or sexual content) the law was only constitutional if it could survive strict scrutiny. One of the requirements of strict scrutiny is that a law be "narrowly tailored" to achieve a "compelling government interest". The requirement for narrowly tailoring means a law cannot be either too overinclusive or too underinclusive. Too overinclusive is obvious. If your law prohibits a bunch of speech you have a compelling interest in regulating but also a bunch of speech you don't have a compelling interest in regulating, it is constitutionally problematic. Too underinclusive is less obvious. The reasoning from the case the court cites (City of Ladue v. Gilleo) is that underinclusive regulations undermine the rationale for the government's compelling interest. If the government is interested in preventing minors from seeing sexual materials online why is it permissible for them to see it on Bing or Google but not other sites? It starts to look like the government's rationale isn't really to prohibit minors from seeing sexual materials but rather to punish specific companies that host sexual material, using this compelling government interest as a pretext. Quoting City of Ladue:
I think there are a few crucial distinctions.
The most obvious one is that gambling websites require you to transfer them money in order to actually gamble. Almost certainly this makes them subject to Know Your Customer and Anti-Money Laundering regulations that require age and identity verification (since they are a custodian and transmitter of your money). Key here, though, is that as long as you don't gamble on these websites you don't have to do any identification or age verification. You can go to Draft Kings right now and nothing stops you from browsing their website, even if you are underage. Laws like Texas' want porn websites to require proof of identity to even visit the site. From a technical perspective it is much easier to require someone to provide proof of identity to make an account than simply load a website, unless you tie those things together.
Another angle is that restrictions on access to pornography implicate fundamental constitutional rights in ways that restrictions on gambling don't. There is, as far as I know, no constitutionally recognized right to gamble. There are constitutionally recognized rights to watch videos, read works, and otherwise consume media. Even if that media involves sexual titillation. There are exceptions for obscene material, but material deemed obscene is a pretty narrow slice of pornography.
True, and I fully support this, but that right doesn't neccesarily extend to minors, does it? Kids under a certain age still aren't permitted to watch R-rated films in theatres without a gaurdian so far as I'm aware. (I guess the distinction here is that this is enforced by the MPAA and the theaters, not the government.)
For the sake of discussion, let's say the technical issues you talked about are solved and age verification can be done. I'm not certain how forbidding minors from viewing porn impinges on the free speech rights of adults. The entertainers are still allowed to make and distribute their entertainment. Timothy and Susan can still consume said entertainment, even if Little Timmy and Suzy Jr can't. Is the argument that requiring proof of age has a chilling effect on consumption?
I believe that is company policy and not law in America. Back when Passion of the Christ was in theaters they let kids in and the explanation was there's no law about R rated movies, just corporate policy that they may change on a whim.
Also what a movie to let kids in. Passion of the Christ is torture porn.
Christians believe that the events in Passion of the Christ actually happened. It's like claiming that a Holocaust documentary is torture porn. And that the standards for showing it to kids should be the same as the standards for showing actual torture porn that has no connection with the real world.
If it's a documentary that uses actors and CGI to show death camp victims being gassed and burned and machine-gunned in excruciating detail, it's torture porn.
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When that film came out I recall historians claiming that it was wildly inaccurate. As a matter of historical fact: the last day of Jesus's life did not occur as depicted in that film. It's not a documentary or factual historical reenactment.
Crucifixion was a really painful and drawn-out way to die. So that was approximately correct and of course believed by Christians. But the wildly exaggerated scourging and out of control Roman soldiers was fictional torture porn for torture porn's sake.
As a matter of historical fact, Jesus didn't rise from the dead either.
It may not have actually happened as shown in the movie, but people believe it happened. Which still disqualifies it from either being torture porn or from being treated the same way as intentional fiction.
Does this assertion add any light to the conversation, or just heat? Would a reversed version of this assertion, made by a Christian, add any light to the conversation?
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The passion of Christ was based on actual Roman Catholic doctrine and traditions about how it went down and not on the consensus among secular historians about what Roman judicial practices would have looked like because it was a religious film.
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Lets do the ad absurdum case just to demonstrate how it's possible in the abstract.
Imagine the law said 'to ensure that no minors see the sight, every time the site is pinged by a new IP, the site must block that IP until the completion of an investigation by a private investigator into the owner of that IP address, to make sure that there is not a reasonable possibility that any child could have access to device. The site is responsible for paying for this investigation from an approved vendor, we've approved 2 vendors and they both charge $10k per IP address'.
Clearly no business can make money under that regime, so the law would in practice just mean 'porn sites are illegal now'. This certainly impinges on the ability for adults to exercise free speech in this area, even though the law does not explicitly say as much.
The case here is not that extreme, but it's the same idea: undue burdens, chilling effects, etc.
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I am not actually sure how far such rights extend to minors. I would think they have some right to do so, but probably not extending to pornography.
This is an important distinction in constitutional law.
From a constitutional angle I don't think solving the technical issues changes anything, at least with respect to this particular law. The judge's holding was not primarily about the impracticality of implementing age verification, but of the various exceptions in the law that seemed to undermine the legislatures stated purpose in passing it (exceptions for websites whose content was less than 1/3 pornography, for example).
Now, we can imagine a law that is also better drafted. Perhaps since we have solved the age verification problem we can extend the law to also cover social media of various sizes and search engines and so on. Would this hypothetical law be constitutional? It would still be a content based restriction on speech so it would still need to pass strict scrutiny. The court has already found the government has a compelling interest in restricting minor's access to pornography (first prong). I think it's at least arguable that putting the burden of age verification on websites that serve the related content is the least restrictive means (third prong). This brings us back to tailoring (second prong). Is this law sufficiently narrowly tailored? Certainly it's more tailored than the original law. This is probably a complex fact based question that turns specifically on how the age verification works and false positive/negative rates and similar questions. I don't have a strong belief about how exactly it shakes out without more specific facts.
As far as chilling effect, a chilling effect is generally an argument advanced to demonstrate that a law burdens some exercise of speech. It goes to the question of whether a law is infringing on a fundamental right. In this case I think the law is straightforwardly burdening exercise of a fundamental right (the whole purpose is to erect a barrier to its exercise) so I don't think a chilling effect analysis would take it any further.
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That's not what they are saying. They're saying that when your law is curiously specific, it's probably you're up to no good. For instance, you forbid red lights on buildings, but not yellow or green ones, on the grounds of "traffic safety" (not confusing these lights with traffic signals), when it just so happens that red lights are associated with one political party and green lights with another.
City of Ladue states
The specific issue there was that the City of Ladue banned all residential yard signs except "For Sale" signs, "residence identification" signs, and signs warning of safety hazards, and further allowed churches, commercial organizations, and non-profits to have signs residences were not allowed, all under the excuse of "avoiding visual clutter".
(it appears, however, that this is dicta; the court decided against Ladue on other grounds)
I think this is a bad application of that principle -- if the law was tailored to require age verification from some porn sites but not others (or defined "porn site" in such a way to make that effectively true if not technically true), that would be cause for suspicion under this principle, but requiring age verification for porn sites but not non-porn sites such as search engines probably doesn't. At least if you accept that there's sufficient government interest in requiring age verification for porn, which as far as I know the courts generally do accept.
The problem here is that that isn't the only reason for a law to be curiously specific. For instance, it may be that the specific version that is addressed by the law is one that people happened to notice a lot of, or worry about a lot of, and that they equally well object to the others, but didn't think it worth spending the effort on them because they have limited resources. Or it may be that they think the existing law inadequately addresses the specific version, but not other versions, either de jure or de facto.
Yes; it's a flag, not definite disqualifier, and the state can certainly make the case that the exceptions have a good reason. Like I said, I think it was misapplied in this case. If it's OK to require age verification for porn, it's not unreasonable for the law doing so to not include ordinary search engines.
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When the state argues an interest is Compelling, it's not merely arguing that it's important, or really important. It's arguing that it's so important that it's justifiable to restrict basic constitutional rights in furtherance of that interest. If pornography is harmful enough to minors to warrant speech restrictions, then what difference does it make what percentage of the total content on a site meets the definition of pornography? The only reasonable definition of a "porn site" in this case is any website that contains pornography.
The state could easily argue that occasional incidental harm from pornography on sites which were not dedicated to it is one thing, but exposure to sites dedicated to porn is far worse, and quantity has a quality all of its own. It certainly is not clear that age-restricting sites dedicated to porn but not search engines which may incidentally contain porn is an attempt to engage in a prohibited content-based restriction. What would that prohibited restriction be?
They could easily argue it but then they'd be further undercutting their assertion that it's a compelling state interest; that's a pretty easy way to get that argument shut down. For example, back in the 80s or early 90s a town in Florida passed a law prohibiting the slaughter of animals, and members of the Santeria religious community, who engage in animal sacrifices, objected on religious grounds. The town countered that it had a compelling interest in preventing the kinds of problems that can arise from having a lot of dead animals around. The problem was that the law contained so many exceptions as to make this assertion laughable. Farms were exempt, slaughterhouses were exempt, butchers were exempt, hunters were exempt, etc. Evidently, the only people this law actually applied to were those who slaughtered animals for religious reasons, whom it was clearly designed to target. This isn't an exact analogy since the town passed a supposedly neutral ordinance as a pretext for banning religious activity it didn't like, and I'm not sure that's the case in Texas, but the point is that when restrictions of fundamental rights are at stake you don't get to hedge your arguments and create balancing tests and the like. If the interest is compelling, you're expected to act as though it is.
Realistically, though, there's a further complication to this that would probably prevent things from getting that far. Practically speaking, no one is "incidentally" exposed to porn from dedicated sites the way you argue they theoretically could be on Google Images. If you're on PornHub or XVideos you didn't just stumble across it, and as far as I know no one is arguing that incidental exposure is the problem. Google Images isn't nearly on level with dedicated porn sites, but for someone trying to use it for porn (or someone for whom it's the only source of porn due to the law) it can easily deliver more content than you would get if you bought out your entire local newsstand. Arguing porn for minors is only a problem if the total amount available exceeds 10 terabytes isn't likely to get you very far.
Requiring verification to access content. It's a restriction. Imagine if you had to create an account, submit photo ID verifying it was you, and wait for approval before reading any news story online. And suppose this wasn't the website's doing, it was a legal requirement for all news sources. Buy a newspaper, show photo ID. Do you think this would pass constitutional muster?
No, but I think it might pass muster for porn. That is the question that needs to be decided.
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Doesn't this say that if Texas passes a law requiring people to also provide proof of age to use Bing and Google, that would be A-OK?
I'd like to think this is an unrealistic overreach, but since there seems to be no such thing anymore it's a bit concerning.
It wouldn't be vulnerable to that particular argument. I'm fairly sure "proof of age to use any site on the Internet" wouldn't pass muster period though.
"Every internet user is traceable to an identifiable human" is something that some very large interests are, um, interested in though -- you may be insufficiently blackpilled on this one!
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