7 ms·

Texas' online porn law could shatter a First Amendment precedent

21 points by telotortium 2y ago

rayiner 2y ago
First Amendment precedent is due for a brush clearing. The Supreme Court went in a stupid direction with it in the 1960s and 1970s. Nobody who wrote the first amendment thought it protected pornography.
- amanaplanacanal 2y ago
  I dunno. It seems simple: if you don’t like porn, don’t use it.
  - polski-g 2y ago
    If you don't like guns, and use them.
    - 01HNNWZ0MV43FF 2y ago
      Far as I know I never killed anyone by looking at their picture
  - rayiner 2y ago
    That’s simple-minded reasoning, based on the false notion that personal choices don’t have social effects. The things society allows have aggregate social consequences that affect individuals. If aliens were watching a society that allows porn and one that doesn’t, those societies would be different even if the aliens couldn’t see into people’s bedrooms to observe them actually watching porn.
    - filoleg 2y ago
      > If aliens were watching a society that allows porn and one that doesn’t, those societies would be different even if the aliens couldn’t see into people’s bedrooms to observe them actually watching porn. Yeah, we can do that today even. All I can say is that after looking at some of the countries in the present day that don’t allow porn, they are indeed different from those that do. Typically not in ways that would make anyone actually want to live there, and with their lack of porn access having pretty much nothing to do with that at all. Makes you wonder, huh.
  - KBme 2y ago
    The law doesn't prevent you from using it. It prevents children from accessing it, or at least tries to.
    - sgarland 2y ago
      Not really. I’m fairly confident the lawmakers knew the operators of porn sites would just exit the market, because the methods of proving identity were onerous, and also who wants to submit proof of their identity to a porn site? Similarly, VPNs are a dime a dozen and incredibly easy to use, so a minor who wants to access it can just hop through another state. The law has no real impact.
    - nunez 2y ago
      It does this by asking for a government issued ID as proof. Prima facie, this makes sense. When you get cigs or beer, you're asked for ID to prove you're over 18. Porn is age-restricted, so porn websites should also ask for ID. QED, etc. But if you go even one step beneath this reasoning, you'll see that this is an unbelievably slippery slope: - What's stopping state governments from subpoenaing ID verification systems to find out who's viewing porn? - This is from the same state that "pioneered" a legal bounty system for phoning in women who might be getting an abortion so that they can be "dealt with." What's stopping the state from doing the same from people who watch porn? - What's stopping the state from extending this law to require age verification for anything that feels right for an ID check? Abortion sites? sites about birth control? Sites saying the wrong things about $DEITY? - This is also from the same state that, as the article outlines, has also passed a state bill that makes any form of moderation on social media illegal. So enacting spam control for folks spamming OnlyFans links is fine, but if you click on those links, you're viewing contraband and should be dealt with? What the fuck?
- lesuorac 2y ago
  I suspect neither the founders nor the framers thought pornography would be an issue. (Probably because prostitution was wide spread so why would pornography not be allowed) Have you see a Greek statue? Those well pre-date them. Pretty much the second a medium is invented it's used for porn and some of these mediums like engraving or even taking pictures are pretty old. Stanley v Georgia is from 1969 [1] which is more than 110 years after pictures [2]. Seems like porn being allowed was pretty settled regardless of if it was because of the 1st amendment or not. [1]: https://en.wikipedia.org/wiki/Stanley_v._Georgia https://en.wikipedia.org/wiki/Stanley_v._Georgia [2]: https://en.wikipedia.org/wiki/Daguerreotype https://en.wikipedia.org/wiki/Daguerreotype
  - rayiner 2y ago
    Pornography was widely banned in pretty much as soon as photographs were invented. The federal Comstock Act was passed in 1873, and many state laws preceded it. Stanley v. Georgia is the kind of brush that needs clearing. It concluded that anti-obscenity laws that had been on the books for a century were suddenly unconstitutional. The reasoning of the decision makes absolutely no sense. It has a lengthy hand-waving rant about what someone may possess in the “privacy of their own home.” But the only privacy right in the Constitution is the fourth amendment, which prohibits warrantless searches. But in that case the police found the pornography while executing a valid warrant on suspicion of gambling activity. Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. If the defendant in Stanley had been in possession of child pornography, he would have been subject to prosecution even today. So the decision’s while digression about privacy is literally immaterial to the issue before the Court. Instead, Stanley is based on a value judgment about the type of pornography at issue in that case an opposed to say child pornography. But that sort of analysis of social costs and benefits is for voters and legislatures, not the Supreme Court.
    - lesuorac 2y ago
      > Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. The framers would doubt that on probably two counts. 4th) Seizing an item not listed in the warrant sounds like a general warrant with extra steps. 5th) As originally intended, you can't self incriminate yourself with your personal belongings. It lead to a whole host of issues with prosecuting people so the US judicial system has decided to ignoring it's intended meaning. This is also why Fruit of the Poisonous Tree is from the 1920s [1] (as opposed to say 1789 when the constitution was written) since that fruit used to be always inadmissible as opposed to now sometimes inadmissible. [1]: https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
- sgarland 2y ago
  Nobody who wrote the second amendment thought it allowed non-militia members to own weapons of war, yet here we are. At least with that argument, there’s literal text (“A well-regulated militia”) supporting the point.
  - busterarm 2y ago
    Writing for the majority, Antonin Scalia argued that the operative clause of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” codifies an individual right derived from English common law and codified in the English Bill of Rights (1689). The majority held that the Second Amendment’s preamble, “A well regulated Militia, being necessary to the security of a free State,” is consistent with this interpretation when understood in light of the framers’ belief that the most effective way to destroy a citizens’ militia was to disarm the citizens. The majority also found that United States v. Miller supported an individual-right rather than a collective-right view, contrary to the dominant 20th-century interpretation of that decision. (In Miller, the Supreme Court unanimously held that a federal law requiring the registration of sawed-off shotguns did not violate the Second Amendment because such weapons did not have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”) Finally, the court held that, because the framers understood the right of self-defense to be “the central component” of the right to keep and bear arms, the Second Amendment implicitly protects the right “to use arms in defense of hearth and home.” https://www.britannica.com/event/District-of-Columbia-v-Heller https://www.britannica.com/event/District-of-Columbia-v-Hell...
    - sgarland 2y ago
      Well aware of Heller. Just as OP said SCOTUS went in the wrong direction for 1A, I similarly believe the Heller decision was incorrect. I’m not trying to start an argument on the legitimacy or lack thereof of decisions; I’m pointing out that if you want to play the originalist game, there are plenty of other examples that you may not like.
      - busterarm 2y ago
- OkayPhysicist 2y ago
  "Freedom of the press" and "Freedom of speech" is just as enshrined in the first amendment as "Freedom of religion". Yet none of the backwards hicks pushing for the abolition of our basic rights wants to eliminate THAT protection.
01HNNWZ0MV43FF 2y ago
What is so bad about adults consuming porn? Is it addictive like recreational drugs? Does it lead to delusional thinking like television?
- hollerith 2y ago
  There are porn addicts, and there are men with delusional thinking about women because of porn.
  - ickelbawd 2y ago
    There are also men with delusional thinking about women because of the bible. Lets ban that too.
  - nunez 2y ago
    There are alcohol addicts, and there are people with delusional thinking about life because of alcohol. There are sports addicts, and there are people with delusional thinking about life because of sports. There are gaming addicts, and there are people with delusional thinking about life because of gaming. Should we ban or severely restrict alcohol, sports and games?
    - kelseyfrog 2y ago
      The comparison to alcohol weakens the argument. Alcohol is much more restricted. Retailers are compelled to check for ID, one-quarter of the United States population lives in control states[1], the three tier system is enforced[2], and none states have dry counties. If porn were to have the same restrictions, we would have mandatory ID checks, in some states, the state government or contracted organizations would be the sole distributor of porn, and some counties would ban the retail of porn completely. There's simply better comparisons than to alcohol. 1. States with ABC stores. 2. In every state except Washington
      - nunez 2y ago
        It does and it doesn't. There are mountains and mountains of evidence documenting the harms that drinking at young ages (and in general) introduces. "Evidence" suggesting that porn gives men "delusional thinking" about women is dubious at best. Evidence documenting that men's delusions about women are primarily fomented by viewing porn under 18 is even more scant.

21 points by telotortium 2y ago

First Amendment precedent is due for a brush clearing. The Supreme Court went in a stupid direction with it in the 1960s and 1970s. Nobody who wrote the first amendment thought it protected pornography.

amanaplanacanal 2y ago
I dunno. It seems simple: if you don’t like porn, don’t use it.
- polski-g 2y ago
  If you don't like guns, and use them.
  - 01HNNWZ0MV43FF 2y ago
    Far as I know I never killed anyone by looking at their picture
- rayiner 2y ago
  That’s simple-minded reasoning, based on the false notion that personal choices don’t have social effects. The things society allows have aggregate social consequences that affect individuals. If aliens were watching a society that allows porn and one that doesn’t, those societies would be different even if the aliens couldn’t see into people’s bedrooms to observe them actually watching porn.
  - filoleg 2y ago
    > If aliens were watching a society that allows porn and one that doesn’t, those societies would be different even if the aliens couldn’t see into people’s bedrooms to observe them actually watching porn. Yeah, we can do that today even. All I can say is that after looking at some of the countries in the present day that don’t allow porn, they are indeed different from those that do. Typically not in ways that would make anyone actually want to live there, and with their lack of porn access having pretty much nothing to do with that at all. Makes you wonder, huh.
- KBme 2y ago
  The law doesn't prevent you from using it. It prevents children from accessing it, or at least tries to.
  - sgarland 2y ago
    Not really. I’m fairly confident the lawmakers knew the operators of porn sites would just exit the market, because the methods of proving identity were onerous, and also who wants to submit proof of their identity to a porn site? Similarly, VPNs are a dime a dozen and incredibly easy to use, so a minor who wants to access it can just hop through another state. The law has no real impact.
  - nunez 2y ago
    It does this by asking for a government issued ID as proof. Prima facie, this makes sense. When you get cigs or beer, you're asked for ID to prove you're over 18. Porn is age-restricted, so porn websites should also ask for ID. QED, etc. But if you go even one step beneath this reasoning, you'll see that this is an unbelievably slippery slope: - What's stopping state governments from subpoenaing ID verification systems to find out who's viewing porn? - This is from the same state that "pioneered" a legal bounty system for phoning in women who might be getting an abortion so that they can be "dealt with." What's stopping the state from doing the same from people who watch porn? - What's stopping the state from extending this law to require age verification for anything that feels right for an ID check? Abortion sites? sites about birth control? Sites saying the wrong things about $DEITY? - This is also from the same state that, as the article outlines, has also passed a state bill that makes any form of moderation on social media illegal. So enacting spam control for folks spamming OnlyFans links is fine, but if you click on those links, you're viewing contraband and should be dealt with? What the fuck?
lesuorac 2y ago
I suspect neither the founders nor the framers thought pornography would be an issue. (Probably because prostitution was wide spread so why would pornography not be allowed) Have you see a Greek statue? Those well pre-date them. Pretty much the second a medium is invented it's used for porn and some of these mediums like engraving or even taking pictures are pretty old. Stanley v Georgia is from 1969 [1] which is more than 110 years after pictures [2]. Seems like porn being allowed was pretty settled regardless of if it was because of the 1st amendment or not. [1]: https://en.wikipedia.org/wiki/Stanley_v._Georgia https://en.wikipedia.org/wiki/Stanley_v._Georgia [2]: https://en.wikipedia.org/wiki/Daguerreotype https://en.wikipedia.org/wiki/Daguerreotype
- rayiner 2y ago
  Pornography was widely banned in pretty much as soon as photographs were invented. The federal Comstock Act was passed in 1873, and many state laws preceded it. Stanley v. Georgia is the kind of brush that needs clearing. It concluded that anti-obscenity laws that had been on the books for a century were suddenly unconstitutional. The reasoning of the decision makes absolutely no sense. It has a lengthy hand-waving rant about what someone may possess in the “privacy of their own home.” But the only privacy right in the Constitution is the fourth amendment, which prohibits warrantless searches. But in that case the police found the pornography while executing a valid warrant on suspicion of gambling activity. Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. If the defendant in Stanley had been in possession of child pornography, he would have been subject to prosecution even today. So the decision’s while digression about privacy is literally immaterial to the issue before the Court. Instead, Stanley is based on a value judgment about the type of pornography at issue in that case an opposed to say child pornography. But that sort of analysis of social costs and benefits is for voters and legislatures, not the Supreme Court.
  - lesuorac 2y ago
    > Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. The framers would doubt that on probably two counts. 4th) Seizing an item not listed in the warrant sounds like a general warrant with extra steps. 5th) As originally intended, you can't self incriminate yourself with your personal belongings. It lead to a whole host of issues with prosecuting people so the US judicial system has decided to ignoring it's intended meaning. This is also why Fruit of the Poisonous Tree is from the 1920s [1] (as opposed to say 1789 when the constitution was written) since that fruit used to be always inadmissible as opposed to now sometimes inadmissible. [1]: https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
sgarland 2y ago
Nobody who wrote the second amendment thought it allowed non-militia members to own weapons of war, yet here we are. At least with that argument, there’s literal text (“A well-regulated militia”) supporting the point.
- busterarm 2y ago
  Writing for the majority, Antonin Scalia argued that the operative clause of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” codifies an individual right derived from English common law and codified in the English Bill of Rights (1689). The majority held that the Second Amendment’s preamble, “A well regulated Militia, being necessary to the security of a free State,” is consistent with this interpretation when understood in light of the framers’ belief that the most effective way to destroy a citizens’ militia was to disarm the citizens. The majority also found that United States v. Miller supported an individual-right rather than a collective-right view, contrary to the dominant 20th-century interpretation of that decision. (In Miller, the Supreme Court unanimously held that a federal law requiring the registration of sawed-off shotguns did not violate the Second Amendment because such weapons did not have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”) Finally, the court held that, because the framers understood the right of self-defense to be “the central component” of the right to keep and bear arms, the Second Amendment implicitly protects the right “to use arms in defense of hearth and home.” https://www.britannica.com/event/District-of-Columbia-v-Heller https://www.britannica.com/event/District-of-Columbia-v-Hell...
  - sgarland 2y ago
    Well aware of Heller. Just as OP said SCOTUS went in the wrong direction for 1A, I similarly believe the Heller decision was incorrect. I’m not trying to start an argument on the legitimacy or lack thereof of decisions; I’m pointing out that if you want to play the originalist game, there are plenty of other examples that you may not like.
    - busterarm 2y ago
OkayPhysicist 2y ago
"Freedom of the press" and "Freedom of speech" is just as enshrined in the first amendment as "Freedom of religion". Yet none of the backwards hicks pushing for the abolition of our basic rights wants to eliminate THAT protection.

01HNNWZ0MV43FF 2y ago

What is so bad about adults consuming porn? Is it addictive like recreational drugs? Does it lead to delusional thinking like television?

hollerith 2y ago
There are porn addicts, and there are men with delusional thinking about women because of porn.
- ickelbawd 2y ago
  There are also men with delusional thinking about women because of the bible. Lets ban that too.
- nunez 2y ago
  There are alcohol addicts, and there are people with delusional thinking about life because of alcohol. There are sports addicts, and there are people with delusional thinking about life because of sports. There are gaming addicts, and there are people with delusional thinking about life because of gaming. Should we ban or severely restrict alcohol, sports and games?
  - kelseyfrog 2y ago
    The comparison to alcohol weakens the argument. Alcohol is much more restricted. Retailers are compelled to check for ID, one-quarter of the United States population lives in control states[1], the three tier system is enforced[2], and none states have dry counties. If porn were to have the same restrictions, we would have mandatory ID checks, in some states, the state government or contracted organizations would be the sole distributor of porn, and some counties would ban the retail of porn completely. There's simply better comparisons than to alcohol. 1. States with ABC stores. 2. In every state except Washington
    - nunez 2y ago
      It does and it doesn't. There are mountains and mountains of evidence documenting the harms that drinking at young ages (and in general) introduces. "Evidence" suggesting that porn gives men "delusional thinking" about women is dubious at best. Evidence documenting that men's delusions about women are primarily fomented by viewing porn under 18 is even more scant.