A Reagan Judge, The First Amendment, And The Eternal War Against Pornography

Using “Protect the children!” as their rallying cry, red states are enacting digital pornography restrictions. Texas’s effort, H.B. 1181, requires commercial pornographic websites—and others, as we’ll see shortly—to verify that their users are adults, and to display state-drafted warnings about pornography’s alleged health dangers. In late August, a federal district judge blocked the law from taking effect. The U.S. Court of Appeals for the Fifth Circuit expedited Texas’s appeal, and it just held oral argument. This law, or one of the others like it, seems destined for the Supreme Court. 

So continues what the Washington Post, in the headline of a 1989 op-ed by the columnist Nat Henthoff, once called “the eternal war against pornography.”

It’s true that the First Amendment does not protect obscenity—which the Supreme Court defines as “prurient” and “patently offensive” material devoid of “serious literary, artistic, political, or scientific value.” Like many past anti-porn crusaders, however, Texas’s legislators blew past those confines. H.B. 1181 targets material that is obscene to minors. Because “virtually all salacious material” is “prurient, offensive, and without value” to young children, the district judge observed, H.B. 1181 covers “sex education [content] for high school seniors,” “prurient R-rated movies,” and much else besides. Texas’s attorneys claim that the state is going after “teen bondage gangbang” films, but the law they’re defending sweeps in paintings like Manet’s Olympia (1863):

Incidentally, this portrait appears—along with other nudes—in a recent Supreme Court opinion. And now, of course, it appears on this website. Time to verify users’ ages (with government IDs or face scans) and post the state’s ridiculous “warnings”? Not quite: the site does not satisfy H.B. 1181’s “one-third . . . sexual material” content threshold. Still, that standard is vague. (What about a website that displays a collection of such paintings?) And in any event, that this webpage is not now governed by H.B. 1181 only confirms the law’s arbitrary scope.

H.B. 1181 flouts Supreme Court decisions on obscenity, internet freedom, and online age verification. This fact was not lost on the district judge, who noted that Texas had raised several of its arguments “largely for the purposes” of setting up “Supreme Court review.” If this case reaches it, the Supreme Court can strike down H.B. 1181 simply by faithfully applying any or all of several precedents.

But the Court should go further, by elaborating on the threat these badly crafted laws pose to free expression.

When it next considers an anti-porn law, the Court will hear a lot about its own rulings. But other opinions grapple with such laws—and one of them, in particular, is worth remembering. Authored by Frank Easterbrook, perhaps the greatest jurist appointed by Ronald Reagan, American Booksellers Association v. Hudnut (7th Cir. 1985) addresses pornography and the First Amendment head on.

At issue was an Indianapolis ordinance that banned the “graphic sexually explicit subordination of women.” Interestingly, this law was inspired by two intellectuals of the left, Catharine MacKinnon and Andrea Dworkin. They maintained (as Easterbrook put it) that “pornography influences attitudes”—that “depictions of subordination tend to perpetuate subordination,” including “affront and lower pay at work, insult and injury at home, battery and rape on the streets.” (You can hear, in today’s debates about kids and social media, echoes of this dire rhetoric.)

Although he quibbled with the empirical studies behind this claim, Easterbrook accepted the premise for the sake of argument. Indeed, he leaned into it. For him, the harms the city alleged “simply demonstrate[d] the power of pornography as speech.” That pornography affects attitudes, which in turn affect conduct, does not distinguish it from other forms of expression. Hitler’s speeches polluted minds and inspired horrific actions. Religions deeply shape people’s lifestyles and worldviews. Television leads (many worry) “to intellectual laziness, to a penchant for violence, to many other ills.” The strong effects of speech are an inherent part of speech—not a ground for regulation. “Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.”

Like Texas today, Indianapolis targeted not obscenity alone, but adult content more broadly. And like Texas, the city sought to excuse this move by blending the two concepts together. Pornography is “low value” speech, it argued, akin to obscenity and therefore open to special restriction. There were several problems with this claim. But as Easterbrook explained, it also failed on its own terms. Indianapolis asserted that pornography shapes attitudes in the home and at the workplace. It believed, in other words, that the speech at issue influenced politics and society “on a grand scale.” True, Easterbrook acknowledged, “pornography and obscenity have sex in common.” Like Texas today, though, Indianapolis failed to carve out of its ordinance material with literary, artistic, political, or scientific value to adults.

“Exposure to sex is not,” Easterbrook declared, “something the government may prevent.” This is not an exceptional conclusion. “Much speech is dangerous.” Under the First Amendment, however, “the government must leave to the people the evaluation of ideas.” Otherwise free speech dies. Almost everyone would, if operating in a vacuum, happily outlaw certain kinds of noxious speech. Some would bar racial slurs (or disrespect), others religious fundamentalism (or atheism). Some would banish political radicalism (of some stripe or other), others misinformation (defined one way or another). Many of the lawmakers who claim merely to hate porn would, if given the chance, eagerly police all erotic film, literature, and art. (Another pathbreaking Manet painting, Luncheon on the Grass, would plainly have fallen afoul of the Indianapolis ordinance.) The First Amendment stops this downward spiral before it begins. It “removes the government from the role of censor.”

Indianapolis “paint[ed] pornography as part of the culture of power.” Maybe so. But in the end, Easterbrook responded, the First Amendment is a tool of the powerless:

Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. . . . Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.

Earlier this year, the Supreme Court’s conservative justices sang a similar tune. It is “not the role of the State or its officials,” they declared in 303 Creative v. Elenis, “to prescribe what shall be offensive.” On the contrary, the Constitution “protect[s] the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.” Here’s hoping that, when they’re dragged back into the eternal war against pornography, those justices give these words their proper sweep.

Corbin K. Barthold is internet policy counsel at TechFreedom.