5th Circuit Declares Age Verification Perfectly Fine Under the First Amendment | Hacker News Reader

5th Circuit Declares Age Verification Perfectly Fine Under the First Amendment

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17 pointsrntn7 comments

I think it does make a little sense. A pornographic website makes money by displaying pornography alongside advertisements. Viewing the website, the pornography, means also viewing the advertisements. So it's a long stretch, but the fact that money is involved in displaying pornography would put it somewhere in the obscenity laws. If there were no advertisements, and the website offered up the porn, completely free, then it would be a different argument. It's the money involved that gives the arguments any weight.

The presence of advertisements on a site does not make the site content. Whether a site primarily hosting sexual content uses advertisements also changes nothing about whether it's constitutional for the government to mandate that a site publish particular "health warnings" about the non-ad sexual content on the site.

Non-obscene porn (okay for adults, not okay for children) is protected by the First Amendment, while obscenity (determined by the Miller test [1]) is not protected (not okay for adults, not okay for children) by the First Amendment. The Fifth Amendment's decision that some sexual material can obscene only when viewed/read by children and non-obscene when viewed by adults relates to the mandated age verification part of the Texas law, and has little if any relation to the mandated "health warnings" (which are for adults, since children aren't allowed to be on the site).

[1] https://en.wikipedia.org/wiki/Miller_test

This will be overturned by the Supreme court.

how applicable this will be for the age-verification stuff that's now popping up for social media too?

Seems like it could apply to anything capable of porn nudity to a minor.

Which is interesting because the term porn is not exactly well-defined. Modern usage of the term includes things like architecture porn, car porn, etc. which do not constant sexual imagery at all.

I mean, public obscenity laws and laws prohibiting the distribution of pornography to children are as old as the first amendment. Moreover, I believe minors aren't even fully covered by the first amendment. Only adults.

Be careful not to conflate obscenity laws and pornography laws. Porn that isn't obscenity is protected by the First Amendment. Children are not allowed to access any porn. Obscenity (determined by the Miller test [1]) is by definition not protected by the First Amendment [2]. Both children and adults are not allowed to access obscenity. In the featured case, the Fifth Circuit decided that some sexual material can be obscenity in one context — when viewed/read by children — and not obscenity in another context — when viewed/read by adults. Whether obscenity precedent supports a concept of "obscene only when viewed by children", hypothetical regulations which rely on such a concept would still have to pass a test stricter than rational basis review [3] if they create hurdles to adults' access to speech which is "obscene only when viewed by children". The Fifth Circuit incorrectly applied the rational basis review standard to age verification; if the means of achieving a government interest impact (not necessarily target) a fundamental right (such as freedom of speech, which encompasses adults' freedom to access porn), then strict scrutiny [4] applies by default.

The Texas age verification law concerns porn in general, not just obscenity. Obstacles to adults' access to protected speech must pass strict scrutiny in most cases. Perhaps mandated age verification on porn sites could be interpreted as a "place" restriction to support intermediate scrutiny [5] rather than strict scrutiny, but I'm not sure that public decency laws governing physical spaces such as strip clubs are applicable to digital websites. If you enter a strip club then the staff will instantly have a visual estimate of whether you're an adult. If you go to a porn website with an age verification system then you might have to give the website or the verifying party much more information than your age.

[1] https://en.wikipedia.org/wiki/Miller_test

[2] https://en.wikipedia.org/wiki/United_States_obscenity_law

[3] https://www.law.cornell.edu/wex/rational_basis_test

[4] https://en.wikipedia.org/wiki/Strict_scrutiny#Applicability

[5] https://en.wikipedia.org/wiki/Intermediate_scrutiny#Free_spe...

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