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The hilarious implications of the Supreme Court's new porn decision
The hilarious implications of the Supreme Court's new porn decision

Vox

timea day ago

  • Politics
  • Vox

The hilarious implications of the Supreme Court's new porn decision

is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. The Supreme Court upheld a Texas anti-pornography law on Friday that is nearly identical to a federal law it struck down more than two decades ago. Rather than overruling the previous case — Ashcroft v. ACLU (2004) — Justice Clarence Thomas's opinion spends at least a dozen pages making an unconvincing argument that Friday's decision in Free Speech Coalition v. Paxton is consistent with the Court's previous decisions. Those pages are a garbled mess, and Thomas spends much of them starting from the assumption that his conclusions are true. All three Democratic justices dissented. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. That said, Free Speech Coalition makes two very significant changes to the Court's approach to free speech protections for pornography, and these changes are clearly stated in Thomas's opinion. In Ashcroft, the Court struck down a federal law that basically required pornographic websites to screen users to determine if they are over the age of 18. One reason for this decision is that it was far from clear that websites were actually capable of performing this task. As the Court had acknowledged in an earlier case, 'existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.' This mattered because, long before the internet was widely available, the Court had established, in cases involving phone sex lines and televised pornography, that 'the objective of shielding children' from sexual material is not enough 'to support a blanket ban if the protection can be accomplished by a less restrictive alternative.' These decisions established that adults have a First Amendment right to view sexual material, and this right cannot be diminished in an effort to keep that material from children. Related The huge stakes in a new Supreme Court case about pornography Accordingly, in Ashcroft, the Court ruled that the federal age-gating law must survive the toughest test that courts can apply in constitutional cases, known as 'strict scrutiny.' Very few laws survive this test, and the law at issue in Ashcroft did not. The Court's ruling in Free Speech Coalition, however, changes the rules governing laws that seek to block minors' access to pornography, but which also may prevent adults from seeing that material. While much of Thomas's opinion is difficult to parse, one significant factor driving the Court's decision is the fact that technology has evolved. The internet, and internet pornography, is much more widely available than it was two decades ago. And it may now actually be possible to reliably age-gate pornographic websites. Now, laws like the one at issue in Free Speech Coalition are only subject to a test known as 'intermediate scrutiny' — a test which, as the name implies, is less strict. Under this somewhat less rigid framework, an anti-pornography law will be upheld 'if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.' According to Thomas, in Free Speech Coalition, the 'important governmental interest' at issue in this case is 'shielding children from sexual content.' Intermediate scrutiny, it should be noted, is not a paper tiger. Laws that discriminate on the basis of gender, for example, are typically subject to intermediate scrutiny. And most of these laws are struck down. But the new rule announced in Free Speech Coalition gives states broader leeway to restrict access to pornography. Additionally, Thomas's opinion also implies that adults have no legal right to keep their decision to view sexual material private. The plaintiffs in Free Speech Coalition argued that 'the unique stigma surrounding pornography will make age verification too chilling for adults.' Pornography users are likely to be reluctant to submit their ID to a site like Pornhub, for example, out of fear that the website will be hacked. This is likely to be especially true for people who are trying to keep their sexual orientation a secret, or people who could face serious career consequences if their private sexual behavior became public. But Thomas's opinion is exceedingly dismissive of the idea that privacy matters in this context. 'The use of pornography has always been the subject of social stigma,' he writes. But 'this social reality has never been a reason to exempt the pornography industry from otherwise valid regulation.' It's unclear just how far Thomas, or the rest of his colleagues, would take this conclusion. Could a state, for example, require everyone who wants to look at a pornographic video to submit their names to a government agency that will publish them on a public website? At the very least, however, Free Speech Coalition suggests that lawyers challenging anti-pornography laws may no longer raise privacy arguments as part of their challenge. The Court's decision is likely to make life miserable for judges 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. Justice Thomas and his colleagues, in other words, should probably install a popcorn machine in the Supreme Court building, because they've just signed themselves up to recreate the humiliating movie days of the Court's past.

A million kids won't live to kindergarten because of this disastrous decision
A million kids won't live to kindergarten because of this disastrous decision

Vox

time2 days ago

  • Health
  • Vox

A million kids won't live to kindergarten because of this disastrous decision

is a senior writer at Future Perfect, Vox's effective altruism-inspired section on the world's biggest challenges. She explores wide-ranging topics like climate change, artificial intelligence, vaccine development, and factory farms, and also writes the Future Perfect newsletter. The deadliest country in the world for young children is South Sudan — the United Nations estimates that about 1 in 10 children born there won't make it to their fifth birthday. But just a hundred years ago, that was true right here in the United States: Every community buried about a tenth of their children before they entered kindergarten. That was itself a huge improvement over 1900, when fully 25 percent of children in America didn't make it to age 5. Today, even in the poorest parts of the world, every child has a better chance than a child born in the richest parts of the world had a century ago. Future Perfect Explore the big, complicated problems the world faces and the most efficient ways to solve them. Sent twice a week. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. How did we do it? Primarily through vaccines, which account for about 40 percent of the global drop in infant mortality over the last 50 years, representing 150 million lives saved. Once babies get extremely sick, it's incredibly hard to get adequate care for them anywhere in the world, but we've largely prevented them from getting sick in the first place. Vaccines eradicated smallpox and dramatically reduced infant deaths from measles, tuberculosis, whooping cough, and tetanus. And vaccines not only make babies likelier to survive infancy but also make them healthier for the rest of their lives. Robert F. Kennedy Jr., unfortunately, disagrees. President Donald Trump's secretary of health and human services (HHS), a noted vaccine skeptic who reportedly does not really believe the scientific consensus that disease is caused by germs, recently announced the US will pull out of Gavi, an international alliance of governments and private funders (mainly the Gates Foundation) that works to ensure lifesaving vaccinations reach every child worldwide. His grounds? He thinks Gavi doesn't worry enough about vaccine safety (he does not seem to acknowledge any safety concerns associated with the alternative — dying horribly from measles or tuberculosis).The Trump administration had already slashed its contribution to Gavi as part of its gutting of lifesaving international aid programs earlier this year, leaving any US contributions in significant doubt. But if Kennedy's latest decision holds, it now appears that the US will contribute nothing to this crucial program. The US is one of many funders of Gavi, historically contributing about 13 percent of its overall budget. In 2022, we pledged $2.53 billion for work through 2030, a contribution that Gavi estimates was expected to save about 1.2 million lives by enabling wider reach with vaccine campaigns. That's an incredibly cost-effective way to save lives and ensure more children grow into healthy adults, and it's a cost-effective way to reduce the spread of diseases that will also affect us here in the US. Diseases don't stay safely overseas when we allow them to spread overseas. Measles is highly contagious, and worldwide vaccination helps keep American children safe, too. Tuberculosis is becoming increasingly resistant to antibiotics, which makes it harder and more expensive to treat, and widespread vaccination (so that people don't catch it in the first place) is the best tool to ensure dangerous new strains don't develop. It is genuinely hard to describe how angry I am about the casual endangerment of more than a million people because Kennedy apparently thinks measles vaccines are more dangerous than measles is. The American people should be furious about it, too. If other funders aren't able to cover the difference, an enormous number of children will pointlessly die because the US secretary of health and human services happens to be wildly wrong about how diseases work. But the blame won't end with him. It will also fall on everyone else in the Trump administration, and on the senators who approved his appointment in the first place even when his wildly wrong views were widely known, for not caring enough about children dying to have objected. We're destroying the greatest achievements of our civilization for no reason Kennedy, it's worth noting, is not even a long-standing Trump loyalist. He's a kook who hitched his wagon to the Trump train a few months before the election. He doesn't have a huge constituency; it wouldn't have taken all that much political courage for senators to ask for someone else to lead HHS. A lot of his decisions are likely to kill people — from his decision to ban safe, tested food dyes and instead encourage the use of food dyes some people are severely allergic to because they're 'natural' to his courtship of American anti-vaxxers and his steps to undermine accurate guidance on American child vaccination. Trump could still easily override Kennedy on Gavi, if Trump cared about mass death. But if it holds, pulling out of Gavi is likely to be Kennedy's deadliest decision — at least so far. He reportedly may not believe that AIDS is caused by HIV, either, and he can surpass the death toll of this week's decision if he decides to act on that conviction by gutting our AIDS programs in the US and globally. But whether or not the Gavi withdrawal is the deadliest, it certainly stands out for its sheer idiocy. (The Gates Foundation is going to heroic lengths to close the funding gap, and individual donors matter, too: You can donate to Gavi here.) None of this should have been allowed to happen. Since Kennedy's confirmation vote in the Senate passed by a narrow margin with Mitch McConnell as the sole Republican opposing the nomination, every single other Republican senator had the opportunity to prevent it from happening — if they were willing to get yelled at momentarily for demanding that our health secretary understand how diseases work. I am glad the United States does not have the child mortality rates of South Sudan. I'm glad that even South Sudan does not have the child mortality rates of our world in 1900. I'm glad the United States participated in the worldwide eradication of smallpox, and I was glad that we paid our share toward Gavi until the Trump administration slashed funding earlier this year. I'm even glad that mass death is so far in our past that it's possible for someone to be as deluded about disease as Kennedy is. But I am very, very sick of seeing the greatest achievements of our civilization, and the futures of a million children, be ripped to shreds by some of the worst people in politics — not because they have any alternative vision but because they do not understand what they are doing. You've read 1 article in the last month Here at Vox, we're unwavering in our commitment to covering the issues that matter most to you — threats to democracy, immigration, reproductive rights, the environment, and the rising polarization across this country. Our mission is to provide clear, accessible journalism that empowers you to stay informed and engaged in shaping our world. By becoming a Vox Member, you directly strengthen our ability to deliver in-depth, independent reporting that drives meaningful change. We rely on readers like you — join us. Swati Sharma Vox Editor-in-Chief Membership Monthly Annual One-time $5/month $10/month $25/month $50/month Other $50/year $100/year $150/year $200/year Other $25 $50 $100 $250 Other Join for $10/month We accept credit card, Apple Pay, and Google Pay.

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