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Comment by dfxm12 | Hacker News Reader

The judge in this case was appointed by a Republican president. Republicans have recently started to come out against porn [0]. Legislating porn away would be drastically unpopular (and ostensibly unconstitutional), but of course, judges are appointed undemocratically and thus are above having to answer to voters, so using judges to attack big porn sites' income seems like the strategy they're going with.

0 - https://www.msnbc.com/rachel-maddow-show/maddowblog/culture-...

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This is the same strategy as used by vague supposed "anti traficking" laws and such. These do absolutely nothing against actual trafficking of course, but they create lots of fear and doubt around having any business relationship with someone who might be a sex worker. This leads to regular occurrences of things like people who are e.g. just running an onlyfans account on the side getting cut off from companies or evicted by their landlord. Because sex work might be "trafficking" and if it's trafficking, you might be held responsible for renting to them or providing them services, so it's safer to just blanket cut them off. Which is, of course, the goal.

Why would it be unconstitutional?

Is there any mention of porn in the US constitution at all?

Motion pictures aren't mentioned in the Constitution, but most would consider censoring movies to be a violation of free speech. Do you think because the Constitution doesn't specifically mention motion pictures, government should be able to directly or indirectly control what you watch?

Porn is a form of speech, and speech is protected by the constitution.

There are existing obscenity laws that are constitutional. Not all speech is allowed.

https://en.m.wikipedia.org/wiki/Miller_test

From that wikipedia page:

—-

The Miller test was developed in the 1973 case Miller v. California.[3] It has three parts:

Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions[4] specifically defined by applicable state law,

Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The work is considered obscene only if all three conditions are satisfied. (this sentence has “citation needed” though)

—-

I don’t think regular porn fits there, but yeah I am not a lawyer

edit: reading more about that case, it was actually directly about porn, and the decision was directly used against porn producers.

Construing recorded copulation as "speech" was always a reach. That interpretation remains only a case or two away from being discarded. Until the money runs out, I don't think it will be though.

But courts have repeatedly held that child porn is outside the protection of free speech, along with fraud, false advertising, threats, defamation, and some other kinds of speech.

Free speech. There should be no problem as long as no one is harmed in its production. That it offends some people's sensibilities is ultimately irrelevant.

I have no particular horse in this race, but it's worth noting that quite a few legal scholars have designed proposals or at least theorized under what conditions pornography could be illegalized with a First Amendment friendly law[0]. I don't know how successful their proposals are from my POV as a layperson.

Some philosophers have also suggested that even if there are good reasons for protecting the availability of porn, it may not count as speech from the POV of the philosophy of rights - it is simply too unlike other forms of speech to count. I think their arguments are at least worth considering.

[0] https://gould.usc.edu/students/journals/rlsj/issues/assets/d...

I could barely make it past the title without objecting on principle. There's a quote below the title:

> If true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to materials portraying women as objects for sexual exploitation and abuse.

So exposure to this stuff is a "threat" which I presume they intend to combat. The implication being what people are allowed to expose themselves to is supposed to be regulated. This is advocating for censorship and I will never agree with that on principle.

I kept reading that document and saw several insinuations that pornography causes a lot of things, including rape and violence against women. Yeah, I'm not sure about that. Sounds a lot like so many similar claims like video games cause violence and school shootings or rap music causes violence.

Again, I make no claim as to the merit; however, to dismiss these claims out of hand without looking at the evidence first, even if the article contains hyperbole, does not do the claim justice. Suppose, for the sake of argument that the author is right about the empirical statements on pornography; in that case, there may well be a 1A-friendly case for at least a temporary ban on porn. That was the only point I was making.

If I assume the author is right, then yes, I agree that there could be a case. The thing is the arguments used didn't exactly inspire that assumption. I've seen those arguments before.

As for the evidence, I checked many of the references cited and I saw lots of quotes from what looks like books on the subject. Not that much better than the opinions being posted on this thread. Is there an actual peer reviewed academic study showing a causal relationship between pornography consumption and violence against women? If there is, I have to know because I know lots of people who need to see evidence like that, especially in the medical community. If there isn't, this is merely ideological indoctrination as evidenced by their own citations:

> There seems to be a growing willingness of judges to write about the history of sexism and discrimination against women

> Once judges are sensitized to issues of subordination, power and privilege, they can include those ideas in their written opinions and legal reasoning.

So judges are being "sensitized" to these issues? It seems to me that nobody would need to be "sensitized" to the issue if actual evidence existed.

> I have no particular horse in this race, but it's worth noting that quite a few legal scholars have designed proposals or at least theorized under what conditions pornography could be illegalized with a First Amendment friendly law

The author of the piece you cite seems to imagine a giant, previously unrecognized, exception to the First Amendment allowing more extensive regulation of private communication, grounded ultimately in... a case adjudicating the limits of the federal government’s ability to dictate state-government employee benefit decisions under the enforcement clause of the Fourteenth Amendment?

Thanks to the colorful cast of characters involved in Trump’s election-related litigation it is not the single most bizarre legal theory I’ve ever seen from a licensed attorney, but...

>"There should be no problem as long as no one is harmed in its production"

Yes, but isn't this case in particular happening because of harm/abuse?

Yes. In that case, there is a problem that deserves to be investigated by actual law enforcement.

This strategy worked for abortion. Republicans will keep using it, because, as you note, their policy agenda is toxic, and if legislatively enacted, would cist them control.

Recently? Social conservativism has always been anti-porn, and social conservativism has been gravitating towards Republicans since Roe v Wade.

It's pretty evident there are no social conservatives left in the Democrat party anymore, and 2 decades ago it was still large enough that Obama came out against gay marriage while campaigning.

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