I don’t want 14-year-olds looking at porn.
So what could be wrong with the Supreme Court upholding a Texas law requiring people to prove they’re over 18 in order to access a porn website?
Plenty.
Porn—and sex in general—has always been the canary in the coal mine. You know the origin of that idiom, right? Canaries are especially sensitive to air pollution, so 19th– and 20th-century coal miners brought them down to the mines. When the canaries sickened or died from invisible, odorless poison gasses in the mines, it warned the miners of danger ahead.
And that’s what the continuing, successful war on porn is—a warning sign of danger ahead.
As recently as 2002, the Supreme Court ruled that sexually explicit words and pictures were protected speech that adults had a right to consume (and create). This reflected a basic Constitutional guarantee—the government can’t prevent Americans from accessing speech based on the content of the speech. That is, the government can’t criminalize certain words, beliefs, pictures, or ideas just because it doesn’t like them.
And yes, there are a very few, very narrow exceptions, such as child pornography, fraud, defamation, and incitement to immediate violence.
Last week’s Court ruling changes that. It empowers the government to expand the small universe of unprotected speech, based merely on its own values, stated or unstated. This is an updated version of the medieval “cuius regio, eius religio” (“whose realm, his religion”). You believe what the king believes, or it’s treason. Literally.
The Donald Trump MAGA government has ended the historic “no laws against speech just because we don’t like it” contract with Americans. This year it has attacked some student demonstrators, but not others. It revoked the visas of a music group because of their (non-sexual) political viewpoint—a disgusting, mindless viewpoint that anyone on earth should be free to express.
The government punished Harvard because of its faculty’s viewpoints. It revoked the credentials of some news organizations when they accurately said the president lied. It punished attorneys who merely represented defendants who sued the government. And now Trump threatens to deport anyone whose ideas offend him.
To think that John Adams, an attorney before he became our second president, legally represented the British soldiers who killed American colonists in the Boston Massacre. President Trump would have deported him.
So this SCOTUS ruling, and the state laws it supports, gives the government sweeping power that goes way beyond porn.
“Harmful to Minors”
You might think that pornography and obscenity have fixed, objective meanings, but they don’t. In our lifetime, Shakespeare, the Bible, Hollywood films and Broadway theatre have all been attacked and censored by American governments.
Any definition of obscenity sooner or later fails the test of time. But until it does, it ruins lives.
And remember, these laws aren’t about “porn.” These laws regulate adult access to “material that’s harmful to minors.” Harmful according to whom? Using what (necessarily subjective) criteria?
The Texas law says the government can restrict your access to material that is legal for adults if 1/3 or more of it is deemed “harmful to minors.” This restriction even applies to the 2/3 of a website or book that isn’t declared “harmful to minors.”
State legislators can now declare virtually anything “harmful to minors” without having to provide proof or even rationale: information about contraception, menstruation, and sexual assault. Romeo & Juliet. The history of slavery. A video about depression. How to pass a driver’s test. How to escape a religious background. How to circumvent censorship.
Not to mention more controversial topics like sexual identity.
With the Supreme Court’s blessing, you don’t really think legislators will resist the opportunity to quarantine material beyond sex, do you?
But back to the canaries
Historically, the defenders of porn (and, more generally, sexuality) are always protecting everyone’s rights to access other, non-erotic material. Court decisions about now-famous erotic novels and award-winning sex education books have protected your right to read about Communism, domestic violence, and conscientious objectors to the draft.
Porn companies have battled banks who refused to carry their accounts because they didn’t like the business they were in. All businesses should thank porn. Across America, adult bookstores battle discriminatory use of zoning laws to exclude legal businesses just because of the content of their business. All consumers should thank adult bookstores.
But porn and adult businesses get no respect. Most adults use one or both, but no one appreciates their role in protecting our other, more respectable freedoms. There’s still enough stigma (and possible consequences in employment and child custody) that few people will advocate for their rights to use these legal products. And so government can attack porn in ways that it can’t (yet) attack other consumer products.
Whenever government is given tools to regulate our access to porn (or any other speech), it uses those tools as broadly as possible. So various states are now regulating contraceptive information and services—not because they really believe it’s “harmful to minors,” but because they can thereby advance another political agenda: if you want birth control (or an abortion, or cross-sex hormones, or a vasectomy, or an elective hysterectomy), we want to know who you are.
So as crucial as our right to look at porn is, restrictions on our ability to look at porn are not the headline here. The headline is the government was just empowered to require you to identify yourself for no good reason. It isn’t age verification, it’s identity verification.
Can the government now require your ID to enter a library that contains books that are harmful to minors? What about downloading an app that a state declares is harmful to minors?
And if you think “I have nothing to hide, so why would I care?” you’re wrong. You just don’t yet know what your threshold of caring is. Your medical records? Finances? Divorce or custody arrangements? Visits to a therapist? Taste for Chinese opera, Russian music, Persian poetry? Where you’ve travelled—and why?
So: do you like looking at porn? Get ready to tell the government who you are. Want simple information about BDSM? Ditto. Want more information about the history of homosexuality in classic Greece? Ditto.
Want to view my website? Depending on the courage of a handful of state legislators, ditto.
Thomas More & the Devil
Throughout history, authoritarians have promised to keep the populace safe by suspending their rights. This always, always leads to eliminating the rights that keep people safe from the government.
In “A Man for All Seasons,” 16th-century statesman Thomas More warns about the dangers of abolishing laws, even in order to attack the Devil: “And when the last law was down, and the Devil turned round on you, where would you hide, the laws all being flat? This country is planted thick with laws, from coast to coast….and if you cut them down….do you really think you could stand upright in the winds that would blow then?”
Reminder: you want the right to watch porn because you want the right to watch anything.
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