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PaperclipPerfector  1yr ago (text post)   28693 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.

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.

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:

Exemptions from an otherwise legitimate regulation of a medium of speech may be noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: They may diminish the credibility of the government’s rationale for restricting speech in the first place.

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.)

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.

There are constitutionally recognized rights to watch videos, read works, and otherwise consume media.

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?

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 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.

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.

It's like claiming that a Holocaust documentary is torture porn.

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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