1. This is just a form of contemptible virtual signaling by conservative politicians. They battle the phantom menace of porn, pretend to "get something done" in front of their constituents while actually doing nothing to improve people's real lives.

2. For the longest time we Americans pity the Chinese about their "great firewall" where the government keeps all "objectionable" content out of Chinese internet, where users have to use VPNs to get around it. Now we are banning the Chinese app Tiktok and porn, both used by hundreds of millions, and forcing Americans to use VPNs to get around what our government doesn't like. How pathetic.

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Lyndon B. Johnson said it best.

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Anal Sex Is My Thing :)

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https://en.wikipedia.org/wiki/Proposed_UK_Internet_age_verification_system

Unless the new owners of pornhub did not buy the intellectual property to the AgeID system, pornhub should already have a system that fulfills the texas law. (The AgeID website has been blanked so maybe they canned the project).

If Ethical Capital Partners does own the AgeID system, then the cynic would say Pornhub is blocking texas for attention.

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TeamSkeet Statement

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This is the fault of some of the dumbest people in the country, most of which are enticed by Governor Hot Wheel's racism dog whistles more than anything.

Idiots.

People in places like Texas do not deserve freedom because they indulge politicians who would like to curb it.

Edited by - Lezzyist on 3/19/2024 10:12:05 AM

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Anal Sex Is My Thing :)

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Edited by - Tessa on 3/19/2024 4:11:37 PM

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Reno v. ACLU

Ashcroft v. American Civil Liberties Union

Porn would be better classified as content, and therefore a form of "art". (However loosely you think can be applied to that term) It has been tested up against established obscenity laws. A good background can be found here.

The gist is, porn is a performance/content and is protected under free speech (which covers performance) so long as it is not obscene.

Pro-texas-law supporters will use examples such as kids can't buy alcohol or go to strip clubs as being examples of age verification already in place, but alcohol is not content, and strip clubs check for IDs for liability purposes. And when they check IDs at a strip club, they are really looking at the birthdate. They are not making copies of personal identification and requiring users to give up anonymity which could be exploited on the internet.

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1) Even if the First Amendment protects porn, Texas and other states can assert that they aren't flat out banning porn if challenged in court, just requiring increased age verification. Thus, they can argue they aren't violating the First Amendment. Based on Porn Hub's message posted in this thread, Texas didn't block Porn Hub. Rather, Porn Hub blocked Texas. The only way I see how this increased age verification can be challenged is in terms of privacy, asserting that requiring people to upload ID or even facial snapshots can be leaked or unneccessarily interfere with people's rights to privacy. However, this might be difficult to convince a court of considering how it's about people choosing to access adult content and can be perceived as a reasonable way to make it harder for minors to access such content even if parents can install a device blocking such materials.

2) "The gist is, porn is a performance/content and is protected under free speech (which covers performance) so long as it is not obscene."
"...so long as it is not obscene" is the key phrase here. I read the Miller Test which the Supreme Court decided decades ago is the "litmus test" for whether content is obscene, and I don't think most porn would pass this test.

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This isn't mainly about whether I agree with obscenity laws. This is about how the Miller Test defines obscenity as:

(1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work, taken as a whole lacks serious literary, artistic, political or scientific value.

I think most porn fails the third standard and "lacks serious literary, artistic, political or scientific value" though I can think some exceptions. However, that doesn't mean I think it should be banned and much of what's in the mainsteam media may also fail this standard. Just going on what the test says.

The first standard is especially vague, which can make it easier or harder to ban porn. I had to look up what "prurient" meant. The second standard can vary across states.

Edited by - Tessa on 3/20/2024 9:42:19 AM

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One of the reasons that it is so easy for the current SCOTUS to ignore precedent, apart from the fact that the SCOTUS is partisan like in no other western democracy, is that they've adopted the wacky doctrine of Originalism. Originalism as a tool of statutory interpretation exists in other countries, but it's not given a lot of weight. In contrast, Canada and the UK have as their main constitutional interpretation tools the "living tree" doctrine. In those countries, the constitution is seen as a living, evolving document. [Yes, I know the UK doesn't have a written constitution in the sense of what the US, Canada and most other countries have, but they have various documents that are recognized as forming a constitution. The net effect is the same.] Under the living tree doctrine, the constitution is allowed to grow and adapt to new ideas that best suit the current society. I'm probably exaggerating the doctrine of Originalism a bit, but in essence, the rules of the US were set in 1787 and those are the rules. That's it. If you don't like the rules, go live elsewhere.

So up against the doctrine of originalism, I don't see how the free speech argument can stand up. Porn wasn't protected in 1787, so it can't be protected now. Goodbye free speech protections for porn. Seriously, I can't see the current SCOTUS giving this more than five minutes of thought.

Adding to the problem is that the SCOTUS doesn't really even use originalism. They say that their decision is based in originalism even when there is overwhelming historical evidence to the contrary. They want to support one side, and dammit, they'll find a way. There was a recent gun restriction case called Bruen. The issue was New York State requiring permits for concealed carry. Clarence Thomas wrote the majority decision and ruled that the right of the people of NY to be safe was precluded by the right of anyone to carry a concealed weapon because that's what the historical laws said. Except that they didn't say that. The SCOTUS ignored that states regularly imposed reasonable limits on guns, like licencing. Also, SCOTUS specifically said that lower courts are not allowed to consider the public good by wavering from the original meaning of laws. The fact that restricting concealed carry saves lives is great, but it's of no value when imposing the original intent. I guess what's needed is a time machine to go back and give some hints to the various drafters.

Following Bruen's odd reasoning, lower courts have expressed frustration at having to now act as amateur historians when they aren't equipped to do so. I'm a lawyer by profession, and while I studied history in my undergrad degree, that was 40 years ago. I'm no historian, and judges aren't either in most cases. In a recent case out of the Pennsylvania Supreme Court [Barris v. Shroud Township] the court expressed frustration. The facts here are that a guy set up a shooting range on his property that endangered his neighbours. The town shut him down, but the court was precluded from considering that danger because the original law said nothing about restricting shooting ranges.

Consider the case where the restriction against persons charged with death threats against (particularly) an intimate partner, could be ordered to surrender any weapons while awaiting trial. That's gone. Guess what? When gun laws were written, there was no such restriction and we can't even consider keeping people safe. It didn't seem to matter that when those laws were written that wives were pretty much the property of their husbands - the law then is the law now so suck it up.

So originalism is malleable, it seems.

I recall reading an article several years ago by a US constitutional scholar. I really wish I had saved it. She argued that the SCOTUS had created a hierarchy of rights, with religious freedoms and gun rights being at the top of the heap. If a person claims that their religious freedom is being curtailed because abortion is legal, birth control is legal, gays are allowed to live, whatever, that religious right will overrule the rights of women, LGBTQ2+, whoever. I should mention that no one thinks that "religious rights" apply to anyone other than right-wing Christians. "We don't want no Islam people havin' rights now. That's ain't what Jesus told us." Same with guns. If Cleetus wants to walk down Madison Avenue with a .44 Magnum tucked under his shirt, he should be allowed to do that. Oh, many people would feel unsafe? Sorry, that's the law. Your safety isn't important.

So the bottom line is that currently porn is protected as free speech. That's not really in dispute. But how long will it be before that is changed? Who knows.

Americans, you have the oldest democracy in the world, so I guess it makes sense that yours dies first. I know this is catastrophizing, but if Trump wins in 2024, and the Republicans do well in both Houses, the good news is that you may never have to worry about lining up for another federal election as long as you live.

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-Laws prohibiting sex for payment being overturned.
or
-The court ruling that Lawrence v. Texas doesn't apply because it didn't involve commerical sex.
or
-Lawrence v. Texas being overturned so the Supreme Court can avoid using this as precident, which could turn gay rights back almost 20 years.

On the same theme, the Supreme Court could also overturn cases that set precidents for access to adult content and privacy if a case makes it up to that level.

Edited by - Tessa on 3/20/2024 3:42:21 PM

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Laws governing sex work in Canada are a bit strange. It's similar to drug laws. A Supreme Court case back in 2010 (I think) essentially gutted the outdated laws against sex work as being unconstitutional. By 2014 we had a right-wing government that changed the law to follow the Nordic model which criminalizes buying sex, but not selling it. It isn't that magnanimous though, as other provisions are somewhat draconian. For example, it's illegal for a sex worker to hire a bodyguard or driver. It's illegal for a group of sex workers to rent an apartment together to share costs and be more safe.

For me, one of the underlying concerns of the current Canadian law around sex work it's it's premise. It's premise is that all sex work is exploitative and every person engaged in it is a victim, and we need to protect victims. I don't doubt that many people in sex work are coerced and exploited, but many aren't. I've read enough about sex work, particularly with women who work independently, that they are in control and often enjoy the work. Plus, there is a level of income that is sometimes hard to match.

But here's the weird thing about the law. I don't think it's ever enforced, except as a nuisance law. It's like the conservative government passed the new law in 2014 and everyone just ignored it - including the police. Yes, women at the lower end of the socioeconomic scale who work the street are susceptible to enforcement, but that's about it. If sex work is discreet, it seems to be an unwritten agreement to just let it slide. (Police will investigate and enforce where there are allegations of human trafficking.) The only places I'd be concerned would be small towns where the residents are busybodies and cops may have nothing better to do.

Drug laws are mostly unenforced too. Except for trafficking. Simple possession of even hard drugs isn't a huge deal. Cannabis has been legal since 2018 so there's nothing much to enforce there. There are legal pot shops and illegal pot shops. It's rare that the illegal ones get hassled. The most that authorities might do to an illegal pot shop is to have a legal one open nearby in hopes of putting the illegal one out of business.

Last point - a few years back a sex worker sued a client in small claims court in Halifax, Nova Scotia. He arranged for a multi-hour session and she didn't get payment up front and he refused to pay when it was over. The small claims court ruled that it was an enforceable contract. While this woman being successful at all is a big victory, what's lost on many is the bigger victory behind this ruling. In law, and I have no reason to think this is any different in the US, a contract for something illegal isn't enforceable. It's mostly because it's in the public interest to discourage contracts for illegal things. If X hires a hitman to kill someone, and the hitman doesn't do it, X can't sue the hitman to get his money back. (There is also a contract remedy called "strict performance, where the hitman could be ordered to carry out his obligation, but I think you can see why that wouldn't be ordered.) But in this case, the court saw this as a legally enforceable contract. The person hearing the case (who isn't a judge) implicitly ruled that this was a legal contract.

https://www.cbc.ca/news/canada/nova-scotia/former-sex-worker-small-claims-court-national-precedent-1.6896597

Anyway, the bottom line is that I still think it is highly likely that the SCOTUS will carve out a free speech exception here to block porn. They've signaled that they are there to do the bidding of those who put them there.

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"Conservatism," in any country where there's a "rise of the right wing," is a false front. It's devolved from a doctrine into more of a motif, where politicians or judges can protect or justify their actions by saying they're going back to older, simpler times ("what the Founders intended") and old = good. Gun laws: "It's our fundamental freedom to own firearms, and the Founders knew freedoms come from God." Old = good. Porn: "Obscenity is a moral outrage, and the Founders knew freedoms should be restricted to only those free from sin or vice, as defined by God himself." Old = good.

What's really happening here is what's always happened since the times of kings whose names we've forgotten or otherwise misspelled: Governments want a piece of the action. Conservatism is such a malleable putty that it can be used to justify almost any action a government takes, to establish an artificial system of economic control. It's like how Prohibition in the US drove up the value of alcohol. It's explains why there's a legal cannabis shop and an illegal cannabis shop within feet of each other in Canada. Keep an eye out on Texas: That age restriction law won't be so much about protecting minors, as defining what constitutes age verification for that state. Who will control the verification industry? Who will certify it? What will be required - or should I say, how much will be required to obtain and maintain verification?

RFB3

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For the record, I have no interest in limiting religious rights. People can go into their synagogues, churches, mosques, temples, whatever, on whatever holy day they choose and they can learn that their holy book and deity hates people of certain colours, nationalities, beliefs, sexual orientations, or just anyone different from them. They can wrap themselves in that hatred like a warm blanket. BUT... when they leave their holy place, they have to accept that as a society we all need to get along.

Sadly, in the US it seems that the fight between the religious right and secular moderates is mostly over, with the religious right claiming victory. I'll wait until November before calling it completely over, but if some of the recent issues - mostly women's rights - don't motivate a backlash, I don't know what will. While the battle to impose a narrow Christian morality (which is neither, in my opinion) on American society has been mostly bloodless, I think that when (not if) that narrow Christian morality comes to be adopted in laws that things could get really messy between the parties on the religious side. It's a weird alliance of evangelical Christians and reactionary Catholics. Once they take power, that could be a bloody battle. Those two groups may have set aside dogmatic differences to take on secularism, but I can't see them sharing power. There is too much hatred within that alliance.

See? This is why church and state need to be kept separate.

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I dunno, though: I look at what you said, and I am not an ANAL, but I do think your comment illuminates the underlying motivation I discussed - perhaps not intentionally. You point out (correctly) that SCOTUS resorts to originalism when it suits its purpose, and avoids all mention of it when that suits its purpose. Your argument is that those in power seek the support of the religious zealots (the minority of religion, but a powerful one). That's not wrong either, certainly. But what's the motivation here, besides power retention? My theory is that it lays the foundation for power expansion. Not necessarily to become zealots themselves, but moreover to manage the flow of transactions. That's why those laws you mentioned are only enforced selectively; these guys leave a channel open. That's the key to it all: where that channel resides, and who controls its gate.

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I see your point and I agree. You are right about what I wrote, but even I missed the other side of my argument, namely that there are politicians who are happy to exploit those with fervent religious beliefs and who want to impose those on others. These politicians are more than happy to sell that promise for support. This has been going on for a long time. My earliest recollection of this craven tactic is with the Republican Party in the late 1970s and when Ronald Reagan was elected in 1980, though it probably goes back further than that. There is a big difference between then and now though. Back then, and even well into the 2000s, Republicans would seek support from the religious right but wouldn't actually deliver anything. I haven't really given this much thought yet, but I suspect there are two reasons for this. First is that Republicans probably (and correctly) assumed that all they needed to do was give lip service to the religious. Second, and most important, is that US court on most levels were still non-partisan and independent. They applied law and followed precedent. Those days are over. While US courts have been heading in a partisan direction for a while now, under Trump that became a hallmark of the presidency - pack courts with True Believers. This is evident in all levels of the US "Justice" system, though most visible at the SCOTUS.

There's probably a third reason too. While some politicians are likely aligned with the religious right, I suspect that a majority of them aren't and are willing to do the bidding of those who want to create a theocracy because they know it won't harm them. If they have a teenage daughter who gets pregnant, the politician has the money and clout to fly her to a blue state, Canada, or even somewhere in Europe to get an abortion and keep it quiet.

So yes, I guess that's what I was saying too. I was concentrating too much on the motivation of the religious people and forgot the other side of the equation, namely that there are plenty of people who are willing to exploit those people to gain power. The big difference is that now these politicians can and do deliver on those promises.

Irony intended - God help us all.

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