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PaperclipPerfector  9mo ago (text post)   28388 thread views

Culture War Roundup for the week of August 28, 2023

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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:

Although the state defends H.B. 1181 as protecting minors, it is not tailored to this purpose. Rather, the law is severely underinclusive. When a statute is dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint discrimination under false auspices, or at a minimum simply does not serve its purported purpose. See City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994). H.B. 1181 will regulate adult video companies that post sexual material to their website. But it will do little else to prevent children from accessing pornography. Search engines, for example, do not need to implement age verification, even when they are aware that someone is using their services to view pornography. H.B. 1181 § 129B.005(b). Defendant argues that the Act still protects children because they will be directed to links that require age verification. (Def.’s Resp., Dkt. # 27, at 12). This argument ignores visual search, much of which is sexually explicit or pornographic, and can be extracted from Plaintiffs’ websites regardless of age verification...

...In addition, social media companies are de facto exempted, because they likely do not distribute at least one-third sexual material. This means that certain social media sites, such as Reddit, can maintain entire communities and forums (i.e., subreddits), dedicated to posting online pornography with no regulation under H.B. 1181. (Sonnier Decl., Dkt. # 31-1, at 5). The same is true for blogs posted to Tumblr, including subdomains that only display sexually explicit content. (Id.) Likewise, Instagram and Facebook pages can show material which is sexually explicit for minors without compelled age verification. (Cole Decl., Dkt. # 5-1, at 37–40). The problem, in short, is that the law targets websites as a whole, rather than at the level of the individual page or subdomain. The result is that the law will likely have a greatly diminished effect because it fails to reduce the online pornography that is most readily available to minors.

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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