VOX.com on the Supreme Court’s New Porn Decision

From Ian Millhiser's 6-27-25 VOX.com article entitled "The Hilarious Implications of the Supreme Court’s New Porn Decision":

Free Speech Coalition makes clear that the era when the courts struck down nearly all laws regulating sexual speech is over. The government will now play a larger role in regulating online content depicting sex.

There is a very good reason, moreover, why pre-Free Speech Coalition courts took a libertarian approach to sexual speech. Although the First Amendment has been part of the Constitution since the late 1700s, it was largely meaningless for most of American history. And the government routinely prosecuted people for saying things, or for producing art, that regulators or law enforcement found objectionable. Under the 1873 Comstock Act and similar state laws, for example, people were routinely jailed for selling erotic literature or nude art, even works that are now widely considered masterpieces.

This regime began to change in the middle of the twentieth century, when the Court started protecting speech of all kinds, including both sexual and political speech. In Roth v. United States (1957), for example, the Court established that sexual speech and art could only be banned if the “average person, applying contemporary community standards” would determine that “the dominant theme of the material, taken as a whole, appeals to prurient interest.”

Later Supreme Court decisions tweaked this rule, and they also focused on whether the challenged speech or art has “serious literary, artistic, political, or scientific value.” Speech that does have such value is protected.

All of these legal tests, however, are quite vague. And the question of whether a particular film or photo has serious artistic value is rather obviously in the eye of the beholder. Hence Justice Potter Stewart’s infamous statement that he may not be able to come up with a coherent legal framework to determine what sort of material should be banned, “but I know it when I see it.”

The result was that, for much of the 1970s, the justices literally had to meet in the basement of the Supreme Court to watch pornographic movies that were the subject of prosecutions, in order to make subjective calls about which movies should be protected by the First Amendment.

Those movie days, as described by Bob Woodward and Scott Armstrong in The Brethren, were thoroughly humiliating experiences. Justice John Marshall Harlan, for example, was nearly blind during many of these screenings, so one of his law clerks had to describe what was happening on the screen to him — often prompting Harlan to explain “By Jove!” or “extraordinary!”

Meanwhile, filmmakers would often try to work within the Court’s “serious literary, artistic, political, or scientific value” framework by including political discussions or similar matters in a movie that was otherwise about sex. According to Woodward and Armstrong, for example, one such film ended with a speech “on the comparative merits of Communist and Western societies.”

The point is that, once the Court decided that some sexual speech is protected by the Constitution, it was extremely difficult to come up with a principled way to distinguish art that is too sexy to be protected by the First Amendment from art that is not. And the Court’s attempts to do so only made a mockery of the justices.

Eventually, the combination of Supreme Court decisions that read the First Amendment broadly, and technologies like the internet that made it very difficult to suppress sexual speech, ushered in an era where pornography is widely available and mostly unregulated.

In upholding the Texas law at issue in Free Speech Coalition, the Court could end this era. But the justices are likely to make their own lives miserable as a result. Texas’s law incorporates many of the Supreme Court’s past pornography decisions, only restricting speech, for example, that “lacks serious literary, artistic, political, or scientific value for minors.”

Thus, if Texas wants to apply this law to Pornhub, some poor judge will have to watch much of the content on that website to determine if it has literary, artistic, political, or scientific value — and whatever that judge decides, their decision will be appealed to other judges who will have to engage in the same exercise. 

To read the entire article, click HERE.