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For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier th
by robkop 10mo ago
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ https://www.youtube.com/watch?v=ckoCJthJEqQ
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
- dmurray 10mo agoI would read your summaries of legal precedents again, ahead of lots of people who AAL.
- monocularvision 10mo agoHighly recommend the podcast “Advisory Opinions” if you are interested in Supreme Court analysis.
- cmptrnerd6 10mo agoI also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
- Forgeties79 10mo agoStrict scrutiny is fantastic
- deleted 9mo ago[deleted]
- cvoss 9mo agoOof, I couldn't stand to make it through one episode of Strict Scrutiny. It was a political podcast dressed up as if it were a legal podcast. Not interested.
- Forgeties79 9mo agoYou can’t talk about the Supreme Court/US legal system and just omit politics. They also don’t make any sort of promise to be neutral or objective top to bottom. They aren’t judges making decisions, they’re talking about the law on a podcast.
- devsda 10mo agoLaw is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals. But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
- andrewflnr 10mo agoStrange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial. If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
- coderatlarge 10mo agomaybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.
- pixl97 9mo agoAs the complexity of the world increases this may naturally happen
- coderatlarge 9mo agoperhaps it then becomes a matter of policy to periodically reformulate the law so it is compact and understandable and illustrated with examples for the general public. i wonder if llms will be able to do this reliably ever.
- 9mo ago
- rayiner 9mo ago> Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Ginsberg was about burdens on adults. In that case, New York law prohibited the sale of content containing nude images to minors. The Supreme Court upheld the conviction of a store owner under that law, who had sold magazines containing nude pictures to underage buyers: https://www.oyez.org/cases/1967/47 https://www.oyez.org/cases/1967/47. Ginsberg acknowledged that the magazines did not qualify as obscenity as to adults--selling the magazines in question to adults was protected First Amendment conduct. So the age checking necessarily required by the law was a burden on those First Amendment protected sales. Ginsberg necessarily found that burden to be a permissible one.