Porn on the docket

Summary

Today, Explained: "Porn on the Docket" Episode Summary

Release Date: June 30, 2025
Hosts: Sean Rameswaram and Noel King
Guests: Mark Joseph Stern (Legal Writer for Slate), Ian Millhiser (Supreme Court Correspondent for Vox)

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1. Introduction to the Supreme Court's Recent Rulings

The episode kicks off with Noel King setting the stage for the Supreme Court's latest decisions as the justices head out for their summer break. Highlighting the aftermath of the court's rulings, Noel mentions several contentious decisions:

• Birthright Citizenship: Contrary to some expectations, the court did not overturn birthright citizenship. However, they did expand President Trump's authority by limiting the courts' ability to issue nationwide injunctions against presidential executive orders (Noel King, [00:01]).

• Educational Content and LGBTQ Topics: The court ruled that parents have the right to opt their children out of classes that include books featuring LGBTQ characters, addressing concerns about age-appropriateness (Noel King, [00:39]).

• Free Speech and Pornography: A significant ruling on pornography was discussed, indicating potential broader implications for free speech ([Noel King, [00:48]]).

2. Deep Dive into "Free Speech Coalition vs. Paxton"

Mark Joseph Stern, a legal writer for Slate, joins Noel to dissect the Supreme Court case Free Speech Coalition vs. Paxton, which challenges a Texas law aimed at restricting online pornography access.

Case Overview:

• Texas Law: Requires individuals to verify they are over 18 to access online pornography. Websites must ensure underage users cannot view explicit content, with hefty fines imposed for non-compliance (Mark Joseph Stern, [02:32]).

• Free Speech Coalition (FSC): Represents the pornography industry and advocates for the rights of adults to access and produce pornographic content. FSC argues that such regulations infringe upon First Amendment protections ([Mark Joseph Stern, [04:31]]).

• Texas Attorney General, Paxton: Defends the law, emphasizing the need to protect children from online pornography, asserting that it's a necessary measure in the digital age ([Ian Millhiser, [05:08]]).

Key Arguments:

• FSC's Position: Claims that the Texas law imposes significant burdens on both adult consumers and pornography providers, raising data privacy concerns and potentially deterring lawful access to porn (Mark Joseph Stern, [03:53]).

• Government's Defense: Argues that the law is a reasonable effort to shield minors from explicit content, asserting that any burden on adults is minimal compared to the protection offered to youth ([Mark Joseph Stern, [07:08]]).

3. Supreme Court's Ruling and Its Implications

The Supreme Court's decision introduces a nuanced shift in how free speech, particularly regarding pornography, is evaluated:

• Intermediate Scrutiny Applied: Contrary to expectations of either strict scrutiny or rational basis review, the court opted for intermediate scrutiny. This standard is less rigorous than strict scrutiny but more stringent than rational basis, allowing greater government leeway in regulating speech to protect significant interests—in this case, safeguarding minors ([Mark Joseph Stern, [08:14]]).

• Majority Opinion: Delivered by Justice Clarence Thomas, the ruling emphasizes that preventing minors from accessing pornography is a legitimate governmental interest. The decision acknowledges that while there may be some restrictions on adult access, they are not deemed excessively burdensome ([Mark Joseph Stern, [09:00]]).

• Dissenting Opinion: Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented, arguing that the majority's approach undermines established First Amendment precedents. They contended that strict scrutiny should continue to apply, ensuring robust protection of free speech, even when accessing pornography involves adults ([Mark Joseph Stern, [10:41]]).

Notable Quotes:

• Noel King: "Low value speech is such a good way of putting it." ([06:25])
• Mark Joseph Stern: "We're not just talking about sexual speech here, we're talking about political speech." ([26:23])
• Justice Barrett (during oral argument): Expressed concerns about the ease with which children can access pornography through everyday devices like refrigerators ([25:04]).

4. Historical Context of Pornography and First Amendment Protections

Ian Millhiser provides an insightful historical overview of how pornography has intersected with First Amendment law in the United States:

• Early Restrictions: Initially, free speech protections were limited, with laws like the Comstock Act making the distribution of obscene materials illegal. Significant prosecutions occurred against erotic literature and nude art, even when such works are now celebrated (Ian Millhiser, [18:14]).

• Shift in the 1950s: The Supreme Court began to protect sexualized speech, recognizing that not all explicit content should be censored. The Miller v. California (1973) case established the Miller test, determining obscenity based on whether the material has serious artistic, scientific, political, or literary value ([Ian Millhiser, [22:39]]).

• Challenges of the Miller Test: The subjectivity of determining "serious artistic value" led to inconsistent rulings and awkward situations, such as justices viewing pornography in the basement to assess cases ([Ian Millhiser, [20:46]]).

• Technological Advances: The rise of the internet has complicated regulation. Age-gating software can be easily circumvented with technologies like VPNs, undermining state efforts to control access ([Ian Millhiser, [24:38]]).

Humorous Anecdote: Millhiser recounts a Supreme Court case where the plot of a pornographic film involved a hijacked airplane, highlighting the often absurd nature of censorship battles ([Ian Millhiser, [22:10]]).

5. Broader Implications for Free Speech

The episode explores how the Supreme Court's decision may influence broader free speech protections:

• Potential for Censorship: There is concern that relaxing scrutiny on pornographic content could set a precedent for more government regulations affecting various forms of speech, not just sexual ([Ian Millhiser, [25:40]]).

• Justice Thomas's Argument: Emphasizes historical traditions of protecting children from explicit content, suggesting a need for the government to have more authority in the digital age to regulate access effectively ([Mark Joseph Stern, [12:29]]).

• Future Uncertainties: While the ruling primarily addresses pornography, its implications for other protected speeches, including political and artistic expressions, remain to be seen. There is apprehension that this could mark a shift towards more restrictive free speech policies ([Ian Millhiser, [25:04]]).

6. Conclusion

The episode concludes by reflecting on the Supreme Court's evolving stance on free speech and pornography. Hosts Noel King and Ian Millhiser underscore the delicate balance between protecting minors and upholding adults' constitutional rights. They acknowledge the historical challenges and the modern complexities introduced by technology, suggesting that this ruling could signify a pivotal moment in First Amendment jurisprudence.

Production Credits:
Produced by Gabrielle Burbay and Miles Bryan
Edited by Jolie Myers
Engineered by Laura Bullard and Devin Schwartz
Fact-Checked by Andrea Christen's daughter and Patrick Boyd
Hosted by Noel King

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This episode of "Today, Explained" offers a comprehensive exploration of the Supreme Court's recent decisions on pornography, delving into legal arguments, historical context, and potential future implications for free speech in the United States. Through insightful discussions with legal experts, listeners gain a nuanced understanding of how contemporary rulings interact with longstanding First Amendment principles.

Transcript

[Noel King]

On their way out the door for summer break. Last Friday, the nine justices of the Supreme Court handed down several rulings that days later still have people asking, what, why, and how will that work? The court did not strike down birthright citizenship, though it did give President Trump more power.

[Ian Millhiser]

It's been an amazing period of time.

[Noel King]

This last hour by limiting courts from slapping nationwide injunctions on the president's executive orders. The court also ruled that parents can opt kids out of a class class if they're reading books with LGBTQ characters. We talked, you might remember, to a concerned Muslim parent two summers ago through.

[Ian Millhiser]

That book there is a discussion about use of pronouns. They introduce transgender, non, binary in our opinion, not age appropriate for our 6 year old.

[Noel King]

And they issued a ruling on porn that is also a ruling on free speech that could have implications for you, if you catch my drift. That's coming up on Today Explained.

[Nisha Chittal]

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[Mark Joseph Stern]

I am Mark Joseph Stern and I am a legal writer for Slate covering courts and the law.

[Noel King]

The Supreme Court just wrapped up their term. They're going on vacation. You and I are still here. There were a lot of big decisions at the end, as there often are. We wanted to talk to you about one and that decision, that case was about porn. Tell us about it.

[Mark Joseph Stern]

So this is a case called Free Speech Coalition versus Paxton that was a challenge to a Texas law that restricts access to sexually explicit speech online, specifically Internet porn. Under the law, individuals can only access pornography if they prove that they're over 18 through age verification. And those who run websites that contain pornography are responsible for ensuring that people under 18 routine don't get to see their materials if they fail to perform that task, then they're subject to pretty massive, if not ruinous, fines. And these are laws that have sprung up in many, many states over the last few years as more legislators and parents have grown concerned about the ubiquity of porn on the Internet.

[Nisha Chittal]

Pornography inflicts its poison on marriages, on families, and on communities. And worst of all, it's not steals innocence from our children and endangers them. Parents are in a competition with big tech companies, and whoever wins that competition is going to determine what kinds of people are formed and therefore what kind of nation we become. Children are frequently exposed to pornography. So pornography's literally been invading our homes and our children's lives through the Internet.

[Noel King]

How do you prove you're 18 or over?

[Mark Joseph Stern]

So you have to submit your ID through a third party platform that the pornography website will link you to. And there are some pretty serious data privacy concerns about this protocol. These platforms are not entirely secure. Some of the plaintiffs here argue that adults who have a right to access this stuff will not do so because they're afraid that the data will leak and that people will know that they were using their IDs to watch porn.

[Noel King]

All right, so let's talk about the players. Free Speech Coalition versus Paxton, who's who.

[Mark Joseph Stern]

So Free Speech Coalition is a trade group that essentially represents the pornography industry. They have been super active in defending the rights of pornographers and adults who enjoy pornography to continue making and watching that content and to try to tackle and overturn restrictions on porn. They've been the plaintiff in a bunch of pretty important cases setting the rules of the road for online porn. And Paxton is the Attorney General of Texas, and he is the one who would be enforcing this law against porn websites.

[Ian Millhiser]

You look anywhere in the developed world or anywhere children are protected. It's my job to enforce Texas law in this case. I feel very comfortable protecting our children from having this put in front of them.

[Mark Joseph Stern]

So it's a pretty clear dispute. There are those who think that, you know, it should be pretty easy to watch porn online, and those who think that it should be fairly difficult. And they had a big fight over the First Amendment.

[Noel King]

I love that the porn trade association called itself the Free Speech Coalition.

[Mark Joseph Stern]

So it is very funny. It's something that surprises people a lot. You know, I think they wanted a kind of anodyne name. They didn't wanna be like pornographers Associated or something. You know, they didn't wanna be sort of tarred with the stigma of online porn. And I guess I will Just say, like, you know, the speech in this case is considered sort of low value. You know, not many people want to stand up and defend Internet pornography, but the implications of these cases and these decisions sweep well beyond Internet porn. And so I think the Free Speech Coalition has, like, a legitimate claim to that name. They are not just defending pornography. They're. They're defending other kinds of speech that wind up receiving protections when porn is protected as well.

[Noel King]

Low value speech is such a good way of putting it. When. When the coalition makes their argument, do say, hey, guys, this could affect. I'm sure they don't call it high value speech, but this could affect the kind of speech that is not porn. Like, what. How do they. How do they draw that argument down to something that might bug me, a person who's not seeking porn?

[Mark Joseph Stern]

Every single time Free Speech Coalition brings a case like this, they argue that they're representing more than just the interests of porn websites. Oh, yay. Oh, yay. Oh, yay.

[Ian Millhiser]

Mr. Schaefer. Thank you, Mr. Chief Justice. And may it please the court to abandon strict scrutiny here. Your Honors could open the door to an emerging wave of regulations that imperil free speech online.

[Mark Joseph Stern]

And I think they're right. In some other cases in other states challenging similar laws, they have brought in individuals who create erotic literature, literatica, as it's known. Individuals who publish salacious stories, or even booksellers who publish ebooks with, you know, sexually explicit material, romance novels. Right. All of that stuff could potentially get swept up in laws designed to restrict Internet pornography. And so Free Speech Coalition does work to expand beyond just the pornographers to say, look, you know, there is material on Netflix that is sexually explicit. There's material on HBO Max. There's material in the book Ulysses, famously, that's sexually explicit. Like, we are on the front lines of this because we're usually the first to be targeted, but we are trying to create an umbrella to protect everybody's speech.

[Noel King]

All right, so the justices are considering all of this. What did the court decide?

[Mark Joseph Stern]

So the court decided something that is a little surprising and not what most of us thought would happen. Can I just get into the weeds a little bit?

[Noel King]

By all means.

[Mark Joseph Stern]

So in the past, the Supreme Court has applied strict scrutiny to laws that restrict adults access to sexual speech. That means that the court requires really careful examination of how much speech the law is censoring. It requires the government. Government to very carefully and narrowly tailor the law to ensure that it's not burdening too much protected speech. But in another case The Supreme Court held that strict scrutiny doesn't apply when kids are involved, that children don't have access to c sexually explicit material. And so states have a much broader hand in cutting off kids from porn. And in those cases, the Court has just applied what we call rational basis review, which is very lenient. So the question in this case was seemingly whether the Court would apply strict scrutiny to this law and likely strike it down or apply rational basis review to uphold it. And the answer was neither. What, which is really surprising. And so what the Court did instead was take a kind of middle ground. And it's applied something called intermediate scrutiny, which is in between rational basis review and strict scrutiny, as you might guess. And it asks also whether the government is furthering an important interest. But it doesn't require require that level of narrow tailoring where the government has to be super duper careful in making sure that it's not restricting more speech than necessary. The test gives the government a lot more leeway to restrict speech as long as it's not sweeping in a huge amount of protected speech. And so here, the Supreme Court, in an opinion by Justice Clarence Thomas, said, we think that this is the appropriate standard because all that Texas is doing here is preventing minors from seeing speech that they're not allowed to see, that they have no constitutional right to see. And it might have some burden for adults, but that burden isn't very high. So we're not going to treat this like censorship. We're not going to treat this like a targeted effort to censor protected speech. We're going to treat this more like a kind of reasonable effort to protect children. And if that creates some pains and burdens for adults, we think that's still okay.

[Noel King]

Okay, so I have the right to watch my steamy romance on Netflix, but a 15 year old doesn't have the right to go on Pornhub. It sounds very rational. It was a 6, 3 decision. The justices who dissented, what were they arguing?

[Mark Joseph Stern]

Yeah, so Justice Elena Kagan dissented, and she was joined by Justice Sotomayor and Justice Jackson. So these are basically the three liberals. Right. And they argue, I think, correctly, that the Supreme Court rewrote its precedents. I just don't think it's true, as the Court says in this case, that it's okay to apply a relaxed form of scrutiny under those other cases as long as the government says it's trying to protect children. The government always says it's trying to protect children. Right. Like this has always been the justification for restricting sexually explicit material and yet in those previous cases in the 90s, in the aughts, the Supreme Court still applied really strict scrutiny. And so here, I think the dissenters are a little confused. And they basically say, we think the majority is confused, too, about what standards should apply. And Justice Kagan says it should be strict scrutiny, and maybe this law would survive strict scrutiny, but that that should be the approach that we take, because the reality is that this is burdening adults access to protected expression. And anytime that burden is happening, we need to be applying strict scrutiny so we can make sure that it comports with the First Amendment.

[Noel King]

The Supreme Court, as I understand it, has a long history of being reluctant to limit speech. Does this ruling surprise you? Does this ruling suggest where we're someplace new?

[Mark Joseph Stern]

Yeah, I would say that this ruling shows that the Supreme Court is maybe a little less concerned about protecting sexually explicit speech. Maybe it's relaxing its standards for, you know, laws that try to prevent children from seeing sexually explicit material, but wind up having the effect of censoring that material for adults as well. Justice Thomas talks a lot about history in his opinion.

[Nisha Chittal]

History, tradition, and precedent recognize that states have two distinct powers to address obscenity. They may prescribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children by the 18th century English common law.

[Mark Joseph Stern]

He talks about how there's a long tradition of protecting children from sexually explicit speech. And I think what. What he's trying to signal is that maybe, you know, the Court went a little too far in protecting porn in the past, and that the Court needs to pull back and give the people, through their representatives, the democratic process, more latitude, especially as technology changes and it becomes so much easier to access this material, you know, and I think the Court's saying with that change and in light of history, we think that's okay.

[Noel King]

Thank you, Mark.

[Mark Joseph Stern]

Yeah, of course. Anytime.

[Noel King]

Mark. Joseph Stern. He's a legal writer at Slate, and he also co hosts their SCOTUS podcast, Amicus. Coming up, why the Supreme Court has been considering porn for decades. Foreign for today's show comes from Adeo. What is Adeo? Adeo is an AI native customer relationship management system built specifically for the next era of companies. They say it's extremely powerful, adapts to your unique data structures and scales with any business model. According to Adeo, Adeo takes less than a minute to set up, and within seconds, you will have your email and calendars synced. You'll see all your relationships in a fully fledged platform. They say all enriched with that actionable data. And they say you can build AI powered automations and use its research agent to tackle some of your most complex processes to see so that you can focus on what matters building your company. You can join industry leaders such as Flat File, Replicate, Modal and so much more. You can go to add IO.comtodayexplained to get 15% off your first year. That's a T T I O.

[Gabrielle Burbay]

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[Nisha Chittal]

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[Mark Joseph Stern]

It's your turn.

[Nisha Chittal]

Visit servicenow.com you're listening to Today Explained.

[Noel King]

Ian Millhiser is here. Ian's Vox's Supreme Court correspondent. He's written two books about the Supremes and he wrote for Vox the hilarious implications of the Supreme Court's porn decision. The case that the Supreme Court ruled on last week was a very modern one. It comes down to children being able to access pornography on Al Gore's Internet. But this is not the first time in history, I gather, that the Supreme Court has taken on the issue of porn.

[Ian Millhiser]

It's not, although it is the first time in a really long time that they have done so. So a simply enormous amount of First Amendment law developed out of pornographic or otherwise sexual speech. And that's not surprising because like the whole point of the First Amendment is to prevent the government from banning speech that someone hates. You know, uncontroversial speech, speech that no one has any problem with it, that never gets banned in the first place. So those don't become First Amendment cases. It's always speech that someone wants to censor that forms the basis of First Amendment cases.

[Noel King]

All right, where does all of this begin?

[Ian Millhiser]

Let me give you, I guess, a hundred year history of this, of the First Amendment.

[Noel King]

Sure.

[Ian Millhiser]

So for most of American history, free speech didn't exist in the United States. You know, we had a First Amendment, but it was basically meaningless. And this isn't just true about sexual speech. This is true. You know, In World War I, it was a crime to fly the German flag. Eugene Jebbs, who was kind of a perennial presidential candidate, the supreme court upheld a 10 year jail sentence against him because he gave a speech in which he protested the draft and he protested the government's practice of censoring people who criticized the draft. So, like, that's where our First Amendment law was a little more than 100 years ago. This was also the era of what is called the Comstock Act. The Comstock act, it's technically still in the books, although it's never enforced anymore. Made it illegal to send what is called obscene or indecent materials through the mail. And the upshot of that was that literature, erotic literature, was banned. Fine works of nude art were often the subject of prosecutions, including works that we now consider to be masterpieces. That was just how things were for most of American history. And it wasn't really until the 1950s that the Supreme Court said, we're going to start protecting sexualized speech. We're going to start saying that you can't throw someone in jail just because they sell a novel with some naughty bits in it. The precedent that is in effect right now is the Miller test. Miller comes from Miller v. California from 1973. It had this rule where you have to ask whether the material has any serious artistic, scientific, political, literary or other sorts of value. And if it has that sort of value, then it's allowed. Then the First Amendment protects it. There's two things I'LL say about that. Rule one is that it's a pretty protective rule. It's a very First Amendment friendly rule. But the other thing is, like, if you're asking whether something has very serious artistic value, that's a really subjective test. Like, you know, every person's definition of what has serious artistic value is going to be different. And so it forced the justices into some pretty, pretty humiliating conditions because suddenly they had to evaluate on an individual basis, does this porno movie have serious artistic value?

[Noel King]

Oh, no.

[Ian Millhiser]

The justices of the 1970s used to have movie debt. Whenever there was a case involving a pornographic movie that reached the Supreme Court. You know, when you're a judge, you gotta look at the evidence. So the justices would meet in the basement of the Supreme Court to watch the porno. This was obviously a very humiliating experience. Justice Harlan at the time was nearly blind. And so he actually had to have a law clerk sit next to him and describe what was exactly. It was such a humiliating experience for the justices. This was the era where Justice Potter Stewart came up with his infamous I know it when I see it line. You know, I don't know what hardcore pornography is, but I know it, why I see it. And so the justices were being. Being forced into the basement to decide whether they see it in each of these individual films. On top of it, these cases were producing all kinds of absurdities in the kind of art that was being produced. So there was one film that came up in front of the Supreme Court, and the plot of this thing was literally, there's a woman, she likes sex, she has a lot of sex, and then she gets on an airplane and the airplane is hijacked.

[Mark Joseph Stern]

We could stop in Sacramento, couldn't we?

[Ian Millhiser]

We'd be violating international law. And I suggest you violate it. If I am correct, with six stops for refusing, we shall be in Havana.

[Mark Joseph Stern]

In approximately 30 hours.

[Ian Millhiser]

And the hijacker launches into this lecture on the relative virtues of communist and capitalist societies. The communist countries have far less money than America, but the people work together as equals. Now, why did that happen? Well, one reason is because it meant the film was protected by the First Amendment.

[Noel King]

Okay, okay. So in Miller. In Miller, they decide that most porn is protected under the First Amendment.

[Ian Millhiser]

Yeah, that was the practical effect of it. I mean, there's still something. The one category that we do still regulate, and I'm glad that we do it, is child porn. So child pornography. And then there's some other things. I mean, if it's non consensual, that can still be prosecuted. As rape. So it's not like there isn't any regulation in this space, but there has been very little regulation. And I think that's a combination of three things. One is the Miller test. The Miller test is just a very first amendment amendment protective test. The second is the experience of the justices in the basement. I mean, once you decide that some sexual speech is protected, judges are going to have to look at the evidence and decide whether this piece of sexual art is protected. And so it is inevitable, unless you have a very libertarian rule that you're going to have justices in the basement watching pornos. And then the third reason why I think think things took a more libertarian turn is just technology advance. So this Texas case that was just decided is about age gating software. In some states, if you look at a porn website, the website has to verify your age. And I will tell you solely for professional reasons that of course have nothing to do with my personal purian interest. I live in Virginia, which is one of the states that is a Texas style law. Pornhub has pulled out of those states because they think it's too difficult to comply with the law. So I went to my computer in Virginia and I typed in pornhub.com and I would not be able to see nudie videos in the state of Virginia. And then I spent two minutes installing a vpn and after two minutes of work, I was able to watch porn in Virginia again. It is child's play to get around these laws. So, you know, the, the fact that technology has evolved to a point that makes it very difficult for regulators to regulate, I think is also a factor here.

[Noel King]

Yeah. When the justices handed down this decision on Friday, as we heard in the first half of the show, there really did seem to be an effort to protect minors or to suggest that maybe we've been a little bit too lax, we've leaned too hard on the first amendment without realizing like, like what is actually going on online. So how does the decision on Friday complicate free speech protections more broadly? Or does it even so?

[Ian Millhiser]

The short answer to that is that it remains to be seen. So it is definitely the case that the justice felt like they pulled back too far and it led to children having too much access to too many things. Justice Barrett had this great riff at the oral argument where she talked about how there's now so many devices in her home that she's worried about her kids watching porn through the refrigerator.

[Nisha Chittal]

I mean, kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices I can say from personal experience is difficult to keep up with.

[Ian Millhiser]

There's this real sense that the government needed to step in. I do worry though just that, you know, I think that the libertarian era in the First Amendment because again we're not just talking about sexual speech here, we're talking about political speech. We're talking about all kinds of speech the government wanted to ban. We just emerged from a long period where the Supreme Court said government stay out of that. We don't want the government regulating speech. And broadly speaking I think that's a very good idea and I hope that the Supreme Court doesn't roll back on that too much.

[Noel King]

Ian Millhiser Vox FOX Supreme Court wild ride Gabrielle Burbay and Miles Bryan produced today's show Jolie Myers edited Patrick Boyd and Andrea Christen's daughter engineered Laura Bullard and Devin Schwartz fact checked the show. I'm Noel King, it's today explained.

[Ian Millhiser]

Sam.