At the Supreme Court, Porn Should Lose So Free Speech Can Win

Later this year, the most important free-speech case in decades will be decided by the Supreme Court, and it’s not about speech at all. It’s about common internet smut, and it’s high time the high court dispelled the modern myth that the purpose of the First Amendment includes protecting porn. The truth is that common porn popular on the internet today is lower than obscene speech. Obscene speech is unprotected, but at least it’s speech. Common internet porn today is not speech at all, and that makes a big difference. 

In the modern myth of the First Amendment, free speech is at once too shallow and too broad. It’s too shallow, as it’s taken to be just the act of pleasing one’s self by saying or doing something. It’s just “trolling” speech that can be censored. According to the myth, a man may be censored merely if others are displeased by what he says more than he is pleased by saying it. But free speech is much deeper than just trolling: It’s the right to seek and then — by one’s conscience — to state the truth.

In the modern myth, free speech is also too broad. It includes that which has absolutely no meaning or message and is just mere conduct, like looting or internet smut. The modern free-speech misunderstanding leads to the atrocious anomaly whereby the most important speech is leveled with the worst conduct and the former gets too little protection while the latter gets too much. 

This tragic misunderstanding is on full display at the Supreme Court in Free Speech Coalition, Inc. v. Paxton. The case arises from several state laws requiring porn sites to verify their users’ ages. As everyone knows, any child with an internet connection — and that’s all of them now — can pull up free porn within seconds with virtually no effort.

The internet’s public square is awash in free porn. Three of the five most trafficked websites in the United States, according to data from April 2023, are porn. (RELATED: Free Speech Coalition, Inc. v. Paxton: Porn Doesn’t Have to Be ‘Inevitable’)

In Paxton, porn sites challenge the new age-verification laws, claiming that they violate the First Amendment. The current United States solicitor general joined the case, mostly agreeing with the states that their laws satisfy the First Amendment but agreeing with the porn sites that the laws should be subject to a legal test called “strict scrutiny,” the highest protection afforded a constitutional right.

What level of scrutiny applies to the porn sites’ First Amendment claims may seem like a mundane legal detail, but it’s anything but. It’s the most important thing in the case, far more important than even whether the porn sites ultimately lose. And on the level of scrutiny, both the porn sites and the solicitor general are dead wrong. Applying the same exacting test to laws burdening political editorials as to laws burdening common internet smut gives smut far too much protection and political speech far too little.

It is no coincidence that the same solicitor general who earlier defended the federal government’s extensively documented efforts to censor online criticism of its pandemic policies is urging strict scrutiny for internet porn now. Instead of defending smut to the level of political speech, the solicitor general would censor political speech to the level of smut, allowing too few political opinions but too much smut. (RELATED: Biden and Harris Finally Back Free Speech — For Porn)

Porn today is fundamentally different from porn before the internet. Then, pornographers adapted artistic media. Professional directors or photographers would stage scenes. Porn movies would have plots. The Supreme Court, in porn cases past, would worry that coming down too hard on obscene speech might scare people into avoiding protected speech: that punishing the director of Deep Throat might scare Kubrick away from making Eyes Wide Shut. The Court would err toward encouraging protected speech by striking down laws punishing obscene speech when those laws left people in doubt as to whether their speech would count as punishable. But, the Court never actually held that all porn was protected speech.

Now, porn is much different. Now, porn is little more than sex with a camera rolling. Like sex in the park, it’s mere conduct — not speech. It’s neither speech nor even expressive conduct because there’s nothing to express: there’s neither meaning nor message. And, coming down hard on “not speech” will not scare people from protected speech. It will at worst scare people from obscenity, which although speech, is unprotected, so it would not matter. The states’ age-verification laws chill no protected speech, and the Court’s worry in past porn cases about the chilling effects on protected speech does not apply.

The right result for the porn sites is their crushing defeat. That’s also the simplest opinion for the Supreme Court to write: “These sites deal in conduct, not speech. The First Amendment does not apply. Case dismissed.”

READ MORE from Sean Ross Callaghan:

Biden and Harris Finally Back Free Speech — For Porn

Feds Charge Trump With a Fake Crime

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