Podcast Summary: Strict Scrutiny – Episode: SCOTUS's Porn Problem

Podcast Information:

• Title: Strict Scrutiny
• Host/Author: Crooked Media
• Description: Strict Scrutiny delves into the intricacies of the United States Supreme Court, exploring its cases, culture, and the personalities that shape its decisions. Hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, the podcast offers accessible and in-depth analysis of legal issues affecting daily life.

Episode Details:

• Episode Title: SCOTUS's Porn Problem
• Release Date: January 20, 2025

1. Introduction

In this episode of Strict Scrutiny, hosts Leah Litman, Kate Shaw, and Melissa Murray tackle a multifaceted discussion centered around recent Supreme Court activities, including a pivotal case on pornography regulation, the aftermath of the Biden administration, the Special Counsel report on Donald Trump, and significant shifts in First Amendment jurisprudence. The episode also touches on broader implications for constitutional law and public trust in the legal system.

2. Key Topics and Discussions

a. Biden's Legacy and the Equal Rights Amendment (ERA) [02:25 – 08:25]

The episode opens with an analysis of President Joe Biden’s efforts to safeguard his legacy post-2024 election, particularly focusing on his recent statement affirming the Equal Rights Amendment (ERA) as the 28th Amendment to the Constitution. The hosts discuss the historical challenges the ERA has faced since the 1970s and express skepticism about the late timing of Biden's announcement.

• Kate Shaw: “Maybe this is Biden's way of taking this car out for a ride, but I'm not sure that this car is going to go very far.” [04:22]

• Leah Litman: “I do think this is a step... I do think this is a step towards galvanizing new rounds of public debate about the Constitution and sex equality.” [07:51]

b. Special Counsel Report on Donald Trump [08:25 – 14:22]

The conversation shifts to Special Counsel Jack Smith’s report on Donald Trump’s federal election interference and mishandling of classified materials. They critique the report’s strong assertions regarding Trump’s culpability and discuss Trump’s public denouncement of the Special Counsel.

• Kate Shaw: “I found it just totally uncowed. Jack Smith is like public enemy number one to Donald Trump.” [10:06]

• Leah Litman: “...it is really insistent on the principle that law matters and the rule of law matters.” [12:31]

c. Supreme Court Case: Freedom Speech Coalition vs. Paxton [15:11 – 37:44]

The core focus of the episode is the Supreme Court’s consideration of Freedom Speech Coalition vs. Paxton, a case challenging a Texas statute that imposes obligations on commercial websites publishing sexually explicit material. The statute requires age verification for users accessing potentially harmful content to minors.

• Melissa Murray: “Is it like the old Playboy magazine? You have essays there by the modern day equivalent of Gore Vidal and William F. Buckley, Jr. Not in that sense.” [01:10]

• Leah Litman: “Several justices, including the chief, Alito, Barrett, Kavanaugh, went on and on about how porn has gotten worse.” [24:16]

Implications for First Amendment Jurisprudence

The hosts express concern that the Supreme Court may be moving away from the established strict scrutiny standards for content-based restrictions, potentially undermining First Amendment protections.

• Leah Litman: “If you loosen up strict scrutiny here because it is pornography... what then does that mean for First Amendment jurisprudence in other contexts?” [27:36]

• Kate Shaw: “The Court has been on a tear shredding federal anti-corruption laws... facilitating an environment in which grift and corruption are prevalent in Washington.” [17:47]

Notable Exchanges and Quotes

• Kate Shaw: “The question now is what does this statement from the Biden administration really do vis a vis the era, which is apparently kind of parked on the sidelines.” [06:17]

• Leah Litman: “She did point out as well that if the Court said intermediate scrutiny applied, then the Court might be opening the gates to a lower level of scrutiny in other content-based restrictions.” [40:46]

d. Other Significant Supreme Court Cases [37:44 – 58:05]

The episode covers several other Supreme Court cases with significant legal implications:

1. Hewitt vs. United States: Concerns the interpretation of the First Step Act and the practice of stacking sentences.
2. Thompson vs. United States: Explores the distinction between false and misleading statements in the context of financial disclosures.
3. Stanley vs. City of Sanford, Florida: An anti-discrimination case involving post-employment benefits and the Americans with Disabilities Act (ADA).

• Melissa Murray: “The issue had divided the lower courts... the Court went with their usual type, a white male, former SCOTUS clerk.” [45:52]

• Leah Litman: “She seemed to be on the fence... but Justice Sotomayor was not impressed with her colleague’s suggestion.” [46:56]

e. Opinions and Court Decisions [58:05 – 74:44]

The hosts briefly discuss two unanimous Supreme Court opinions:

1. EMD Sales vs. Carrera: Concluding that a preponderance of evidence standard applies when employers seek exemptions from the Fair Labor Standards Act.
2. Royal Canaan vs. Westchlager: Holding that amending a complaint to delete federal claims necessitates remanding the case for lack of supplemental jurisdiction.

• Leah Litman: “Justice Kagan wrote that opinion.” [58:52]

f. 5th Circuit's DACA Decision [58:52 – 63:16]

The podcast highlights the 5th Circuit’s decision on Deferred Action for Childhood Arrivals (DACA), declaring parts of the program illegal but placing the decision on hold to prevent immediate loss of work authorization for recipients.

• Leah Litman: “When Justice Barrett has replaced Justice Ginsburg, there's a real possibility the Supreme Court could be on the verge of ending the DACA program.” [60:34]

g. Supreme Court Ethics and Public Confidence [63:16 – 73:44]

The hosts discuss ethical concerns within the Supreme Court, referencing a Senate Democrats report criticizing justices for accepting extravagant gifts and creating appearances of impropriety. They also touch on declining public confidence in the American legal system.

• Kate Shaw: “They won the Golden Duke Award for best scandal... we know you worked for it.” [71:10]

• Leah Litman: “The public confidence in the American legal system has plunged... confidence dropped by a staggering 24 percentage points to 35%.” [70:40]

3. Notable Quotes with Timestamps

• Melissa Murray [00:49]: “And what percentage of the material on that is not obscene? As to children?”

• Leah Litman [01:15]: “...a friend of the pod, Samuel Alito, thinks people visit pornhub to read the articles.”

• Kate Shaw [04:22]: “If it effectively was ratified in 2020, it does raise questions about whether his administration should have said something about that when Dobbs was being litigated and decided in 2022.”

• Leah Litman [07:51]: “I do think this is a step towards galvanizing new rounds of public debate about the Constitution and sex equality.”

• Kate Shaw [17:47]: “Make sure to think of and to thank Chief Justice John Roberts.”

• Leah Litman [24:16]: “You could read it that way. More people look at it and are addicted to it and all of the harms that may flow from the consumption of pornography.”

• Melissa Murray [33:28]: “And what percentage of the material on that is not obscene as to children?”

• Kate Shaw [37:17]: “They have really created this climate in which it is very unlikely that any... federal anti corruption laws will be enforced.”

• Leah Litman [43:35]: “This is what I got from the COVID memo...”

• Kate Shaw [55:02]: “Sam Alito has chutzpah. He really does.”

• Leah Litman [70:13]: “John Roberts and the conservative justices won the Golden Duke Award for best scandal.”

4. Insights and Conclusions

The hosts express deep concern over the Supreme Court’s potential shift away from strict scrutiny in regulating pornography, fearing this could set a precarious precedent for First Amendment protections. They highlight how recent Court decisions have eroded federal anti-corruption laws, fostering an environment ripe for political grift and corruption. The discussion underscores the Court's growing involvement in legislative-like policymaking, particularly around sensitive social issues like pornography, abortion, and discrimination.

Additionally, the episode sheds light on the declining public trust in the judiciary, exacerbated by ethical shortcomings and controversial rulings. The indictment of a prominent Supreme Court Bar member and the Senate Democrats’ report on justices’ ethics further illustrate the systemic issues within the highest levels of the American legal system.

The analysis of the Freedom Speech Coalition vs. Paxton case serves as a critical reflection on how technological advancements and evolving social norms are challenging existing legal frameworks. The potential dismantling of established strict scrutiny standards hints at broader implications for future content regulation and civil liberties.

5. Final Thoughts

Strict Scrutiny offers a comprehensive and critical examination of the Supreme Court’s recent activities, emphasizing the profound impact of judicial decisions on constitutional law and societal norms. By dissecting pivotal cases and highlighting ethical concerns, the hosts advocate for greater judicial accountability and reinforce the importance of upholding foundational legal principles in the face of changing technological landscapes and political pressures.

Note: This summary encapsulates the main discussions and insights from the podcast episode SCOTUS's Porn Problem. For a deeper understanding and nuanced perspectives, listening to the full episode is recommended.