Free Speech Coalition, Inc. v. Paxton

Please have your driver's license, social security card, or any other highly personal private information ready to share if you wish to rub one out to online porn. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We will hear argument this morning in case 23 1122 Free Speech Coalition versus Paxton.

• 0:10Peter Shamshiri?

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Free Speech Coalition, Inc. v. Paxton. This recent case is about free speech rights and online porn. In 2023, Texas passed a law requiring age verification for websites hosting sexually explicit material. The Free Speech Coalition, a trade association representing the adult entertainment industry, sued over the law, arguing that adults have the right to view explicit content and that requiring them to verify their age puts a burden on their First Amendment rights.

• 0:45Speaker 02

  The most closely watched First Amendment case is arriving at the High Court in years. The U.S. Supreme Court now says that states can require age verification for online porn.

• 0:57Peter Shamshiri?

  The Supreme Court sided with Texas, ruling that the law only, incidentally, burdens adults' free speech rights and is not severe enough to be struck down. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:18Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have pounded our civil liberties like, uh, let's actually skip the metaphor this week.

• 1:30Peter Shamshiri?

  I'm here with Rhiannon.

• 1:32Speaker 03

  No pounding, no slamming, no...

• 1:35Peter Shamshiri?

  And Michael.

• 1:36Michael Liroff?

  No wrestling to submission.

• 1:39Peter Shamshiri?

  All right, folks. Today's case, Free Speech Coalition v. Paxton. This is a case about free speech, but also online porn and other explicit content. Texas implemented a law that required age verification for any website that contains at least 30% "sexual material harmful to minors." That law was challenged by folks saying that this burdens the First Amendment, but the Supreme Court, in a six-to-three decision, said that it's fine.

• 2:16Michael Liroff?

  That's right.

• 2:17Peter Shamshiri?

  So Ree, since it's your home state...

• 2:20Peter Shamshiri?

  And you're the porn girl.

• 2:21Speaker 03

  And I love porn.

• 2:24Michael Liroff?

  Wait, before we get started, before we get started, guys, I do think, you know, for our listeners, a content warning, we're going to be sticking to the law and the opinions and all that. But again, this is about pornography. So, you know, be warned if your bratty steps is overhears you listening to this.

• 2:45Speaker 03

  No, this is my burden. This is my burden on this episode. I hope listeners really understand the work I'm putting in, the sacrifice I make being on a podcast about porn with these two, with Peter and Michael, the jokes I am going to have to endure. And believe me, many will be cut.

• 3:09Peter Shamshiri?

  Look, I have no jokes planned. We just want to warn listeners that we're going to be saying words like boobs, you know, that sort of content you might expect in this episode.

• 3:20Speaker 03

  Yeah, guys, let's just jump right in. Okay, so this Supreme Court case concerns HB 1181. This was a law passed in Texas in 2023, championed, of course, by the conservative right in the state legislature and then being aggressively enforced since then by the Attorney General Ken Paxton. HB 1181 requires pornographic websites doing business in Texas to, quote, "use reasonable age verification methods to verify that a customer is 18 years of age or older." So the law applies to any commercial entity, like any business, that knowingly and

• 4:00Speaker 03

  intentionally publishes or distributes material on the internet, including social media platforms, more than one third of which is sexual material harmful to minors. And according to the law, companies that don't institute like this age verification, they will be subject to fines of up to $10,000 per day, up to $250,000 if a child is exposed to pornographic content because of like a failure to verify that child's age. So what does verification actually look like? Websites, according to the law, have to require visitors To quote comply with a commercial age verification system. So a website can do this verification itself, or it can hire a third party to do it.

• 4:45Speaker 03

  And that verification system must use government issued ID to verify people's age. Or a quote commercially reasonable method that relies on public or private transactional data. You could, in theory, use, you know, some sort of information about like your house or your mortgage or something like that, some other way, like a bill or other proof that you have of doing business or being a resident in your place that proves you're 18 years old.

• 5:18Peter Shamshiri?

  Here's my mortgage. Please let me jerk off.

• 5:22Speaker 03

  Right. This is, it's, it's, it's ridiculous, but they have to. But they're providing something other than the ID only to verify.

• 5:32Peter Shamshiri?

  Scanning my passport and sending it to Pornhub so I can bust one out.

• 5:36Speaker 03

  Right. There is some absurdity here in having to do this with kind of like, you know, these faceless corporations, third party verification businesses that now just have a list of folks who are signing on to porn websites.

• 5:53Peter Shamshiri?

  Yeah. Soon we're moving towards a world where they use the global entry technology before you jerk off, where you just put your face in the screen.

• 6:02Speaker 03

  Yeah.

• 6:02Peter Shamshiri?

  Like at the airport and they're like, yep, that's you.

• 6:05Speaker 03

  Get those retinas scanned.

• 6:06Peter Shamshiri?

  The first time that I was at an airport and they were just like, yeah, put your face here. I was like, hello, Peter. I was like, what the fuck is going on? Is this, we just let this happen? Yeah.

• 6:16Speaker 03

  So I'm sure people are thinking like, yeah, it's important for kids to not be able to view pornography online super easily. Maybe this is a good thing for websites to have to verify that you're 18 years of age or older. But there are some serious First Amendment free speech. Considerations with this law. So the Supreme Court case here starts with a lawsuit brought by, it's a trade association for the pornography industry. And the organization is called the Free Speech Coalition, bringing this lawsuit. And they're joined by free speech advocates, adult entertainment websites,

• 6:58Speaker 03

  who are saying that this law places an undue burden on adults by forcing them to jump through hoops, endanger their privacy, you know, register themselves as accessing websites that are publicly available for adults and are not illegal for adults. They're accessing legal content. They also argue that this law is overly broad. It could easily be applied to websites that are providing information on reproductive rights, say, sex ed, LGBTQ plus literature. And initially, the district court, the lower level court agrees, and issues an injunction, a stay on the enforcement of the Texas law. But the state of Texas,

• 7:43Speaker 03

  through Ken Paxton's office, appeals, and the Fifth Circuit stayed the injunction. So Texas was allowed to go ahead and enforce the law. Ken Paxton starts suing these companies, these websites, saying they're not in compliance with the law. They're not doing the required age verification. This caused Pornhub to stop operations in Texas, and the lawsuit obviously continues. That's how we get to the Supreme Court.

• 8:09Peter Shamshiri?

  Yeah. So let's talk about the law here. The fundamental legal question is really about how rigidly the court should scrutinize this law. Should it be subjected to intermediate scrutiny or strict scrutiny? This is the question that the court is addressing. If it's subjected to strict scrutiny, the law will almost certainly be struck down. It's a very rigid standard that results in almost every law that is subjected to it being struck down. So the argument is technically about which standard gets applied, right? But really, it's about whether this law gets upheld or not at the end of the day. A big thing to understand here is that there's no question that you can ban minors

• 8:54Peter Shamshiri?

  from accessing explicit content online. Minors do not have a constitutional right to access explicit content. If you're wondering what the definition of explicit content is, good question. We'll talk about that later. But for now, assume that there's some content that we all agree is too explicit for children, right? Children do not have a right to access that content under the Constitution. But there's also no question that adults do have a right to access at least some types of explicit content. So the problem with this law is not that it prevents children from accessing explicit content. The problem is that it burdens adults who want to access this content because adults

• 9:38Peter Shamshiri?

  do in fact have a constitutional right to access it.

• 9:41Speaker 03

  And everybody's on the same page about this, right? In terms of it burdening adults.

• 9:46Peter Shamshiri?

  Yes.

• 9:47Speaker 03

  This is the issue here about whether the First Amendment requires strict scrutiny of this law. There is a burden on free speech to adults here.

• 9:55Peter Shamshiri?

  Right. What the big dispute is between the majority, written by aficionado Clarence Thomas, and the dissent, is what exactly the character of the burden on adults is. The majority's argument turns on whether this law directly burdens speech or incidentally burdens speech. If a law only incidentally burdens speech, it is generally subject to a lower level of scrutiny. So this law burdens the speech of adults by requiring them to verify their age, right? Accessing the content that you want to access is part of your First Amendment right to free speech.

• 10:36Peter Shamshiri?

  So there's really no question that it burdens adults' First Amendment rights. And the Free Speech Coalition argued what I think is the correct take, and the dissent agreed, which is adults have a right to access this content. You're imposing an age verification requirement on them. That is a direct burden on their right. It's not incidental. It's the entire purpose and function of the law. But Clarence Thomas says, no, it's not a direct burden. It's an incidental burden. And I'm going to read you his reasoning because trying to explain it myself is essentially impossible, I think. I'm just going to read you what he says. He says, "Because HB1181

• 11:20Peter Shamshiri?

  simply requires proof of age to access content that is obscene to minors, it does not directly regulate adults' protected speech. Adults have the right to access speech obscene only to minors, and submitting to age verification burdens the exercise of that right. But adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment."

• 11:50Michael Liroff?

  It's nonsense.

• 11:54Peter Shamshiri?

  I'm going to read the key sentences again. "Adults have the right to access speech obscene only to minors, and submitting to age verification burdens the exercise of that right, but adults have no First Amendment right to avoid age verification." This is incoherent.

• 12:11Michael Liroff?

  It doesn't make any sense.

• 12:13Speaker 03

  It's nonsensical.

• 12:14Peter Shamshiri?

  The reasoning, as far as I can parse it, is that adults have a right to access explicit material, but they don't have a right to access it without being burdened, which doesn't make sense. The whole point of a constitutional right is that the government cannot burden it without justifying that burden.

• 12:32Michael Liroff?

  Right. Which is the whole point of the strict scrutiny test.

• 12:36Peter Shamshiri?

  The whole point of all of the tests, right? I mean, it's like the whole point of the analysis.

• 12:40Michael Liroff?

  Right. That's like the whole thing.

• 12:42Peter Shamshiri?

  But Thomas wants to avoid that, so he does this weird little song and dance. He's sort of simultaneously saying that they do have the right to access the content and that they don't.

• 12:51Michael Liroff?

  Right.

• 12:52Peter Shamshiri?

  He compares this to O'Brien, a case from the 60s that I think we covered about burning draft cards. There was a law saying that you can't destroy or alter your draft card during the Vietnam War, when there was a draft. Protesters got charged when they burned their cards in protest. And the court held that the law only incidentally burdened their speech. And Thomas says, well, that was the same. They have the right to express themselves, but not the right to burn their draft cards. So it was incidental. But what Kagan points out in dissent was, no, in that case, the law itself was not about regulating speech, right? It was primarily a logistical law.

• 13:34Peter Shamshiri?

  They wanted to make sure that draft cards were preserved for use in the draft. Right. And then the fact that you were burning it in protest was sort of unrelated to the purpose of the law, in a sense, right? Right. Whereas this law is specifically about regulating access to speech. I'll also add, like, I don't agree with the court's conclusion in O'Brien. So like, I don't really care about Clarence Thomas's ability to like, square that case with this one, or whatever. O'Brien, in my mind, was wrongly decided to. But I don't think that his attempt to square them makes any sense. No. I mean, to highlight how absurd Thomas's reasoning is here, I think it's sort of like saying, yeah, you have a right to free speech.

• 14:17Peter Shamshiri?

  You have a right to protest, but you don't have a right to hold up a piece of poster board with a message of your choice on it. So if a state regulates that, it's incidental. It's not a direct regulation of your speech.

• 14:30Speaker 03

  Yeah, it's just labeling the burden itself as incidental, which is actually where the analysis should be about whether the burden is justified.

• 14:39Peter Shamshiri?

  Right.

• 14:40Michael Liroff?

  I think Thomas is doing something kind of sneaky here, which is that like incidental has multiple meanings, right?

• 14:46Peter Shamshiri?

  Yeah.

• 14:47Michael Liroff?

  Something can be incidental if it's happening sort of almost by accident or unintentionally, which is what they're saying in O'Brien. Like, this isn't intended to regulate speech. It's happening incidental to an otherwise non-speech regulation.

• 15:03Peter Shamshiri?

  Hmm.

• 15:05Michael Liroff?

  But incidental can also just mean minor, can mean small.

• 15:08Peter Shamshiri?

  Right.

• 15:09Michael Liroff?

  And that's what I think Thomas is doing. It's like a sleight of hand, is being like, well, like, this isn't that big a deal, though. It's incidental. Who cares?

• 15:16Peter Shamshiri?

  Or it's like, it sort of depends on how you... Characterize the law, right? Like, he's saying it's incidental to the primary purpose of protecting minors.

• 15:28Michael Liroff?

  Right.

• 15:28Peter Shamshiri?

  But it's not incidental to the actual structure of the law. It's the entire point of the law, right? The, the whole point of the law is age verification.

• 15:36Michael Liroff?

  Yeah, exactly.

• 15:38Peter Shamshiri?

  It's an intentional minimization and obfuscation of what your constitutional right actually is, right? Where he's just sort of like, "Well, you don't have a constitutional right to avoid age verification." It's like, "Okay, right." It's also true that you don't have like a constitutional right to avoid paperwork when you're buying a gun, right? But if a state put 20,000 pages of paperwork in front of you before you had to buy a gun, it would burden the right so dramatically that the court would say, "Well, you can't do this."

• 16:08Michael Liroff?

  Right.

• 16:09Peter Shamshiri?

  It's just a way of sort of like twisting the actual words in, in these arguments, where like, it seems plausible, but when you back up, it doesn't actually make any sense. Another part of this argument is that according to Thomas, the law is both, quote, "traditional and widely accepted as legitimate", which is a little cutesy. What he's saying is that age verification for accessing obscene material, like you have to show ID at a store if you buy porn, that is widely accepted, right? But sending your full ass ID or whatever over the internet, like sending your fucking mortgage application to Pornhub, is neither traditional nor widely accepted as legitimate, right? So, in order for this argument to work,

• 16:54Peter Shamshiri?

  you need to ignore the actual functioning of this law in reality. He's saying, "Well, we've done age verification before", without reckoning with the fact that this method of age verification is completely novel.

• 17:07Michael Liroff?

  Yeah.

• 17:07Peter Shamshiri?

  And I think if you really want to understand what Thomas is doing here, I think he's basically trying to create a bespoke exception to the First Amendment, where if the government says that they're trying to protect children, then any regulation of speech that they want to do is incidental. And that will create a lower standard for First Amendment speech, as long as the government says, "We're trying to protect kids here." We'll talk about the downstream consequences of that shortly, but I think that's the ultimate goal here. All of these weird word games and shit, that's sort of just like him getting to a place where he's now created this sort of functional exception to the Constitution,

• 17:49Peter Shamshiri?

  where if a state says, hey, we're trying to protect children, then you can actually burden adults' speech quite a bit.

• 17:56Michael Liroff?

  So there is a dissent. It's authored by Elena Kagan and joined by the two other libs. And it's okay. It's an okay dissent.

• 18:06Peter Shamshiri?

  You sure it's not fire? You sure it's not the fucking, just fire-breathing Elena Kagan, just kicking ass and taking names?

• 18:17Michael Liroff?

  It's very law professor-y.

• 18:19Peter Shamshiri?

  Yeah.

• 18:20Speaker 03

  Yeah.

• 18:20Michael Liroff?

  You know, it's very sort of didactic. If I had to describe the dynamic, I would say she's the teacher. Thomas is the naughty student that she's holding after class.

• 18:36Speaker 03

  Good lord.

• 18:39Peter Shamshiri?

  We can't keep doing this.

• 18:44Speaker 03

  Yeet me to Mars, please.

• 18:48Michael Liroff?

  But she does a good job. Like, reading it, I was like, up until this case, like, if you wanted to give yourself a primer on content-based restrictions in First Amendment law, you know, like, if you're a law student, reading her sort of analysis of this in her, like, step-by-step, going through, you know, how it's content-based, how it's burdened, and why that means strict scrutiny, and how you apply strict scrutiny, it's great. It's like a great, step-by-step, this is how you do this analysis.

• 19:23Peter Shamshiri?

  Right.

• 19:23Michael Liroff?

  Opinion, which I think, frankly, would be bad if that's all it was, because that doesn't meet the moment. I said it was okay, because she does have some good stuff, where she... Calls them out for not really engaging in legal reasoning at all for just basically,

• 19:41Peter Shamshiri?

  Yeah.

• 19:41Michael Liroff?

  You know, having a conclusion and working backwards to get to it. You know, she says, the usual way constitutional review works is to figure out the right standard and let that standard work to a conclusion. It is not to assume the conclusion and pick the standard sure to arrive there.

• 19:59Peter Shamshiri?

  Yeah.

• 19:59Michael Liroff?

  But that is what the majority does. To answer what standard of scrutiny applies, the majority first spends four pages lauding age verification schemes as common, traditional, appropriate, and necessary. In other words, all over the place and a good thing, too. No wonder the majority doesn't land on strict scrutiny. And that's it. Like they, we think this is good. And so we're going to find a way to land on the legal test that lets it stand because it's good policy. Right? That's all that's going on here. And she does a good job of, you know, hitting that section Peter talked about where Thomas is just totally writing sort of incoherent nonsense, you know?

• 20:40Michael Liroff?

  And she says, so it turns out the majority says that the First Amendment only partially protects the speech in question. The speech is unprotected to the extent that the state seeks only to verify age, meaning the speech is unprotected to the extent that the state is imposing the very burden under review.

• 20:58Speaker 03

  Yeah, completely circular.

• 20:59Michael Liroff?

  Right. Or said another way, the right of adults to view the speech has the burden of age verification built right in. That is convenient if altogether circular.

• 21:09Peter Shamshiri?

  Right.

• 21:10Michael Liroff?

  So it's about as fiery as Kagan gets.

• 21:14Peter Shamshiri?

  Yeah. Kagan is like, she's a specialist when it comes to like precedent, right?

• 21:19Michael Liroff?

  Yeah. And she goes through four different cases in this.

• 21:22Peter Shamshiri?

  Precedent is like her arena.

• 21:24Michael Liroff?

  Yeah.

• 21:24Peter Shamshiri?

  If you step into Kagan's territory on precedent, she will probably eviscerate you. However, she can't leave that arena very effectively.

• 21:35Michael Liroff?

  Right.

• 21:35Peter Shamshiri?

  You mentioned she touches on it, but she sort of struggles to articulate this like big picture, what's the court doing here and why?

• 21:42Michael Liroff?

  Right.

• 21:42Peter Shamshiri?

  And all the liberals do to some degree. But yeah, this is one of those things where it's like, yes, here we are at the end of the Supreme Court term. Six months of them just completely ignoring the law.

• 21:54Michael Liroff?

  Right.

• 21:54Peter Shamshiri?

  Whenever it benefits conservatives and you're like yelling at them because they don't understand the O'Brien precedent. It's like, all right, I guess you're winning.

• 22:05Michael Liroff?

  Or ACLU v Ashcroft.

• 22:08Peter Shamshiri?

  Right.

• 22:08Michael Liroff?

  It is like, I don't know if you guys saw that they're, they're making a new Mortal Kombat movie and the new trailer just dropped and in it, one of the guys does like a fatality where he like rips someone's spinal column like out of their back.

• 22:23Peter Shamshiri?

  Classic Mortal Kombat. Finish him.

• 22:24Michael Liroff?

  Yeah, exactly. And that is like, like Kagan being like, actually ACLU v Ashcroft is not a total ban on speech. It's merely your verdict. Like, that's how I think she imagines herself when she like busts out these quotes, you know? Like you said, when you said like you step into that arena.

• 22:44Peter Shamshiri?

  She's like a really tough side quest for them. You know what I mean? And like, they're like, I can't, can't beat Kagan on precedent, you know, but doesn't really matter. I'm just gonna go beat the game.

• 22:54Michael Liroff?

  Yeah, exactly. Exactly. There is like one other thing I wanted to note from her opinion. She talks about the majority saying that like the internet's basically developed too fast to keep up for us to rely on our precedents. And they say this case ACLU v Ashcroft, which is about obscenity online from 2004, like, isn't really on point as a result. And she says, well, look, hardcore pornography was on the internet in 2004. Like, that's, that's not correct. But I think, again, this is sort of missing what's really happening here, which is it's not that the internet has developed too fast. It's that society

• 23:33Michael Liroff?

  has developed too fast and reactionaries do not like that. They don't like how society has changed since 2004. And so precedent that's not up to the social engineering they want to do is not useful to them. Right? It's like, the internet is developing too fast is just the gloss they're putting on. I don't like how present gay and trans people are in modern American society.

• 24:03Peter Shamshiri?

  Right. And sex, right? Like this old sort of puritanical vibe that they have. This is something that was a much bigger deal politically when you like first saw mainstream porn, right? Like Playboy, Penthouse.

• 24:16Speaker 00

  Right.

• 24:16Speaker 03

  Pornography was like a major culture war issue in the 70s. You know, Reagan and the like courting of the religious evangelical right. Like this is today, a rehashing of debates and fights that we have had for decades.

• 24:33Speaker 00

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• 25:33Peter Shamshiri?

  When you really saw like pornographic magazines come on to the market, right? That was a watershed moment, right? Like all of a sudden pornography, which was like this very niche thing is available at the store. And you know, religious folks were freaking out, right? This was like the decay of society. And then for a very, very long time, they sort of gave up on it politically, in part because it was everywhere. Like there's nothing you can really do to stop it. And it's only recently that they've sort of returned to this and, and come up with like systems of regulation that might actually work. But for a long time, the proliferation of porn is actually what stopped them because

• 26:17Peter Shamshiri?

  it was just so clearly difficult to stop, right? You weren't actually going to be able to impede anyone's ability to consume it.

• 26:23Michael Liroff?

  Right.

• 26:24Peter Shamshiri?

  So when this became like a big issue in the 60s and 70s is also when you saw the first major court cases. And the idea of obscenity is a big part of First Amendment law because it's the outer boundary of what we consider acceptable, right? You're not going to see any free speech cases about like really dull, inoffensive speech because no one's trying to regulate that, or at least not that often. So many free speech cases end up being about either like porn or offensive speech, shit like that, right? In 1973, there's this case Miller v. California where the court says obscene speech is not protected by the First Amendment.

• 27:08Peter Shamshiri?

  But then the test for what is obscene is really vague. It's about whether the work in question appeals to the prurient interest, whether it has no discernible political or artistic value, and all of that is like based on the prevailing standards of the community. Very, very vague stuff. And a lot of conservative legal scholars have argued for leveraging that vagueness to crack down not just on porn, but on explicit content in film and television and beyond that, just sort of expanding the definition of what obscene content actually is.

• 27:49Peter Shamshiri?

  And these cases often remind me of like criminal law in a way where people are like, well, do I really want to defend the person who did this awful crime, right?

• 28:00Speaker 00

  Yeah.

• 28:00Peter Shamshiri?

  And here it's like, well, do I really want to argue for access to porn? Like, is this, is this a hill we're going to die on? And maybe in a vacuum, you don't. But what you're really arguing for is the establishment of red lines for free speech and expression that the government cannot cross, right? And those lines need to be drawn somewhere. And if you want them to be effective, they actually have to be drawn somewhere. That's like a little bit questionable, right? Like, a little bit weird, right? You're gonna have to veer into obscenity if you really want to be able to protect speech.

• 28:36Michael Liroff?

  Yeah, that's right. And like, what's helpful in this moment is that our opponents are very open about how that's true going the other direction, because they're not interested in just little tinkering at the edges, right? They want to control your every thought, your every, you know, everything you read, all that shit. So, like, I'm not exaggerating. You can go look at Project 2025. They talk about pornography. Here's a quote, "Pornography manifested today in the omnipresent propagation of transgender ideology and sexualization of children, for instance, is not a political Gordian knot,

• 29:19Michael Liroff?

  inextricably binding up disparate claims about free speech, property rights, sexual liberation, and child welfare. It has no claim to First Amendment protection. Its purveyors are child predators and misogynistic exploiters of women. Their product is as addictive as any illicit drug and as psychologically destructive as any crime. Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders, and telecommunications and technology firms that facilitate its spread should be shuttered."

• 30:02Michael Liroff?

  Again, this is pornography manifested in the propagation of transgender ideology and sexualization of children. They're saying librarians should be jailed. They're talking about the books we were talking about last week. They're talking about a librarian who stocks a book about a gay couple getting married should go to prison. That's in fucking Project 2025.

• 30:31Peter Shamshiri?

  And not only is it in Project 2025... Project 2025 is a 900 something page document. This is page five.

• 30:39Michael Liroff?

  Yeah.

• 30:40Peter Shamshiri?

  Right. This is like in the introduction. And yeah, it's not like they say pornography, by which we mean like hardcore depictions of intercourse.

• 30:51Michael Liroff?

  Right.

• 30:52Peter Shamshiri?

  They immediately say transgender ideology when they're talking about pornography. Within this definition of pornography and this explanation of what should be done from a policy perspective, there isn't even really a direct mention of what we all understand pornography to be.

• 31:09Michael Liroff?

  Right. Even the sexualization of children, that's not about child porn. That's about children's books where kids might be gay or have a, you know, non-binary gender identity or something like that.

• 31:22Peter Shamshiri?

  Right. I do appreciate them putting in, "Its purveyors are child predators and misogynistic exploiters of women."

• 31:31Michael Liroff?

  Yeah.

• 31:31Peter Shamshiri?

  Misogynists, the classic, the classic enemy of conservatives.

• 31:36Michael Liroff?

  Yeah, exactly. One of the authors of Project 2025 and current head of the Office of Management and Budget, Russell Vaught, was caught on like a sort of secret camera saying, "We'd have a national ban on pornography if we could," right? And he called age verification "a backdoor," quote unquote, to a ban, which, you know, as Rhiannon said, is how it's operating in practice, right? Pornhub no longer allows people to access it from, from Texas. It's the purpose of the law and it's working as intended.

• 32:10Speaker 03

  Yeah, that's exactly right. And so much like background evidence and more information about this, just looking into it a little bit more than what the majority wants you to think is going on here. Sort of it like reveals that there is a larger project here that's actually about anti-LGBTQ people, that's actually about anti-free speech, that's actually about anti-dignity, anti-autonomy, anti-civic participation of every individual. There was another part of this law, I actually don't know if it was a, another part of this law, HB 1181, or if it was just a related law also passed in Texas at about the same time. The Texas Legislature, in passing this law,

• 32:54Speaker 03

  required websites to impose a health warning, pornography websites, to impose a health warning that states, quote, pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function. The Fifth Circuit struck down that part of the law because they called that unconstitutional compelled speech. You can't force somebody to say a quote.

• 33:27Peter Shamshiri?

  Especially, by the way, when it's like for sure not true.

• 33:32Peter Shamshiri?

  Why are they so obsessed with the addictive quality of pornography?

• 33:36Michael Liroff?

  Because they are all addicted to pornography.

• 33:38Peter Shamshiri?

  The psychology here is just so like, it's so clearly on display.

• 33:43Speaker 03

  Yeah, it's a total projection.

• 33:45Peter Shamshiri?

  Like, they're like, oh, it's so addictive. It's so addictive. It's like, calm down. I don't, that has not been my experience.

• 33:54Michael Liroff?

  Like, I know you guys lost that governor race because Mark Robinson, who's like terribly addicted to pornography. But that's a you problem.

• 34:02Peter Shamshiri?

  Right. Maybe it's because the way that you view sex is so unhealthy and fetishistic that when you look at porn, it triggers something in your brain that you've never tried to understand or control. Maybe that's what's happening. That's if I had to guess.

• 34:17Michael Liroff?

  Yeah. And of course, like Texas is not alone. There are 18 other states with similar laws currently in effect. As we mentioned last episode and have talked about here, there are book bans, which are also tied to, you know, the fight to supposedly protect children from pornography. 112 proposed state bills on loosening the standards for banning books in schools, over 30 of which are in Texas alone. Over 4,000 titles banned by the most recent count across school districts. Probably much more than that. That's an incomplete count. Christine Bentley, a member of the State Republican Executive Committee in Texas,

• 35:00Michael Liroff?

  and a big advocate for one of these book ban bills, says she backs it because she is concerned about sexually explicit books and books that tell kids to go look at porn online.

• 35:12Speaker 03

  Absolutely, in the public school library for second graders.

• 35:16Peter Shamshiri?

  Yeah, no, those classic books that we all know.

• 35:19Michael Liroff?

  Right.

• 35:19Peter Shamshiri?

  That tell kids to go look at porn online.

• 35:22Michael Liroff?

  Right. She says it's sexually grooming children. Meanwhile, the books they're banning are like The Handmaid's Tale and The Underground Railroad. Right?

• 35:31Peter Shamshiri?

  Right.

• 35:31Michael Liroff?

  Although I will say Bentley mentioned Blue is the Warmest Color and I haven't read that book, but I watched the movie Fair. I was watching that movie and, and my wife yelled from the other side of the house, are you just watching porn? It's a lot. One of the groups in Texas that's like pushing a lot of this stuff, it's called Texas Values. Their missions include banning pornographic books and teaching creationism in biology. And evolution. So, yeah, this project, of course, it's also tied to like making life more difficult for sex workers.

• 36:15Michael Liroff?

  A lot of whom find clients online now. And so it's about making it harder for clients to find them. Harder for them to get payment processors. This also opens the door to surveillance of disfavored groups. This law in particular puts the burden on the websites. But, you know, these laws can also take the form of government verification. In which case, you know, you would have to be sending your ID to the Texas government in order to access pornography, which if you want the Texas government having your porn search history, you are a braver or stupider person than I can possibly imagine.

• 37:00Michael Liroff?

  As Rhiannon mentioned, it's also very easy to see how this can be expanded to restricting access to abortion, to information about abortion, to Planned Parenthood's website in Texas. You know, maybe that's sexually explicit. As we've discussed multiple times in the last few weeks, the conservatives' idea of what's pornographic and explicit and sexual material is very different from

• 37:30Peter Shamshiri?

  Right.

• 37:30Michael Liroff?

  what I think the normal person says.

• 37:32Speaker 03

  Yeah, and what they're handing the state is you can just say it's protecting children.

• 37:36Michael Liroff?

  Right.

• 37:37Speaker 03

  And we'll give you, we'll give you the out.

• 37:39Michael Liroff?

  It just has to be 30% explicit, right? 30% pornographic, so.

• 37:44Peter Shamshiri?

  It's actually a good microcosm of how a lot of right-wing politics operate these days, where the goal is something that's very palatable to the majority of people. Make it difficult for children to access online pornography, right? The sort of stated, narrow goal is very palatable to the general public. The actual practice of it is A, burdening adults' ability to access adult content, and then B, all of these downstream effects that you get from broadening the definition of what adult content really is, right? You see a similar thing in like the immigration context, where they're like, "We want to get criminal immigrants out of the country," right?

• 38:28Peter Shamshiri?

  If you're a criminal illegal immigrant out of the country, you can run an entire presidential campaign off that, right? And then you see what it looks like in practice, where that's not their goal at all. Their goal is just to get immigrants out of the country, period, to establish white supremacy in certain respects within our country. As soon as the rubber meets the road on their policy, you can see the discrepancy between their rhetoric and the reality of their governance.

• 38:52Speaker 03

  Yeah, and they're taking what is palatable to a majority of people, what we kind of have referred to as like easy cases, like superficially or on their face easy cases, right? Peter, you already made the comparison, which we've talked about before, in criminal law, where conservative judges take advantage of the fact that, you know, somebody has been found guilty of murder, for instance. They take advantage of that visceral instinct that that person should be punished in order to justify that that person doesn't get, for example, procedural constitutional protections at trial or in appeals or on habeas, right? And so here you see a similar thing.

• 39:35Speaker 03

  It is understandable, and in fact, most people probably agree that it was okay with them if it was harder for their kids to, you know, access obscene materials, access pornography online. But we always have to make sure that we contextualize and cast Supreme Court cases, especially with this court, especially over the last several decades, right? In the larger project of implementing brick by brick.

• 40:07Speaker 03

  The judiciary in specifically the Supreme Court right now, actually. The judiciary is where the conservative social movement is doing the work. And the Supreme Court does the work for them, brick by brick by brick. So here you have an easy case where, yeah, people generally don't have a big problem with this. Maybe they don't personally feel like their free speech is that burdened by this. And maybe the the benefit of of protecting kids outweighs whatever burden or inconvenience they might feel by having to do age verification when they go to Pornhub or whatever. You have to see this as in a long line of what's to come. You have to see this as what did the court actually rule?

• 40:50Speaker 03

  Being so vague about a word like incidental. Handing the conservative legal movement, the conservative social movement, the ability to just say we're protecting kids. It sort of reveals, actually, to just say that we're protecting kids. And then that allows them to do all manner of anti-free speech legislation and policy. It utterly reveals what is actually anti-free speech, anti-liberty, anti-privacy, certainly, about the conservative project. And it's something that I think is hard or it's quite like a nuanced discussion, especially about culture war issues. Because these issues do feel so relevant.

• 41:34Speaker 03

  They do feel so close to home. They do invoke such visceral reactions on both sides. But I cannot stop thinking. I cannot stop thinking about the size of the Supreme Court's docket. And what cases they take and what cases they don't. And the prioritization here of this kind of case and gay books.

• 42:01Speaker 03

  And trans kids getting healthcare, taking up such a large proportion of the tiny amount, relatively speaking, of cases that the Supreme Court takes. You, we have to see this as part of the project to actually distract and recast what society's problems are to the public. In that we have massive, massive inequality. We have massive structural racism. We have massive systemic problems that the Supreme Court, in an ideal world, might weigh in on, might take up quite seriously. And instead, what we have is the Supreme Court actually lifting up, you know, putting

• 42:46Speaker 03

  in like this superseding priority on this kind of frankly bullshit that has not been shown to actually be harming a large amount of people or a large percentage of our society the same way so much else is right now. And so you are having social engineering, like you mentioned, Michael, you're having social engineering also happening by being told what the problems are in your life. And those problems are inaccurate. They are not what you should be mad at.

• 43:17Michael Liroff?

  Yeah, that's right. I do think this is a good way to think about the conservative movement writ large is they're upset about social trends they can't control. And, and so they are reaching for power to arrest those social trends. But like, you know, the fucking, the government can't tell you whether or not you like trans people, whether or not you, you want your kid to have friends of many races and all that shit, right? Like the, the government can't tell you that. And so they're just getting more and more authoritarian and more and more demagogic

• 44:00Michael Liroff?

  as they try to shape culture with institutions that are not really fit for that, for that task.

• 44:10Speaker 03

  Yeah, this is one brick in the thought police project, in the mind control project of authoritarianism that's inherent to right wing tyranny.

• 44:20Peter Shamshiri?

  And one very important part of this that we've touched on a bit here is the vagueness of this law. There are two really vague components of this law. One is like, what is sexual material harmful to minors exactly? Obviously, the right wants to include completely inoffensive content like gay people in children's books, but that's a very vague standard to be used in a law. The other is that this applies to websites that have 30% or more sexual material harmful to minors. What does that mean?

• 44:54Speaker 03

  Yeah.

• 44:54Peter Shamshiri?

  30% based on what? 30% of the webpages have offensive material? Is it 30% of the total video content by length, by volume? By what? What are you talking about exactly? This could be challenged as unconstitutionally vague. You can challenge the constitutionality of provisions like this based on vagueness, basically saying they're so vague that they should be void, that you can't constitutionally enforce something this vague because it lends itself to being abused. And to sort of build on what you're saying, Ree, they could have taken up the vagueness question, right?

• 45:32Speaker 03

  Yeah.

• 45:32Peter Shamshiri?

  They could have said, hey, there's a really interesting issue here with how vague this law is that we need to address. Instead, they take up the question of whether it's strict scrutiny or intermediate scrutiny, which, as Kagan lays out, should have been a settled question, right? Yeah. I mean, it's just not a hard one. They wanted to create a new avenue for, quote-unquote, obscene speech to be shut down by the states. But we have all of these constitutional problems built into the law that the court's not addressing here and should probably be addressed, frankly. But I mean, the absurdity of this case and what's so frustrating about it, and what I

• 46:10Peter Shamshiri?

  think becomes so frustrating about life under fascism, is that you're having two separate conversations at once, right? You're having a conversation about what the law says it is and what we all know it is. It says that it's this very narrow law trying to protect kids from online porn, but we all know that it's much broader than that. I mean, it's a very frustrating conversation to have when the other side won't even admit to what they're talking about.

• 46:38Speaker 03

  It's also really frustrating to be put on a quote-unquote "side" of the argument where what you feel you have to argue for or defend... Is, you know, no, actually, sorry, it should be easier for kids to access porn. Like, so just a- again, noting at once the vagueness of the law, the vagueness of how they talk about it, the vagueness of the legal analysis that they take on, but the sharp intentionality of the subject matter.

• 47:08Peter Shamshiri?

  Right. As soon as you have them speaking freely in like Project 2025, all of a sudden, they're very articulate about what they want.

• 47:14Speaker 03

  Yes.

• 47:15Michael Liroff?

  Yeah, yeah. I also want to mention, since we're talking about like the constitutional deficiencies of this law, one point that's not really discussed in the dissent that I think should have been, and why I don't think this law should survive strict scrutiny, one of the many reasons, is it's not very effective at achieving its aims, right? If the aim is to block access to pornographic websites, you know, the WWW stands for World Wide Web. And, uh, and the world has lots of purveyors of pornography that are outside the jurisdiction of the United States. And all this means is that when Pornhub leaves the state,

• 47:58Michael Liroff?

  that little teenagers are going to go to websites that are hosted in Russia or

• 48:05Peter Shamshiri?

  Right.

• 48:06Michael Liroff?

  Eastern Europe or whatever.

• 48:07Peter Shamshiri?

  Which, by the way, tend to operate under more lax standards.

• 48:12Michael Liroff?

  Yes, that's, that was my next point, which is, yeah.

• 48:15Peter Shamshiri?

  One of the sort of like odd things about the internet porn world is that, like, I was reading about this case, and one of the more fascinating things about what's happened in the last like 15 years is that the consolidation of money and power in just like a couple of websites has led to them professionalizing in a lot of ways and taking like steps to crack down on exploitative content, which used to be relatively pervasive on these platforms, and then they cracked down on aggressively. So now only like verified content creators can upload porn to these sites. So like your best bet, like if you want to prevent your child from seeing Online porn, this really won't work.

• 49:00Michael Liroff?

  Right.

• 49:01Peter Shamshiri?

  I would imagine that most parents would prefer that if their kids were going to access porn, that it wasn't like something that is gross and exploitative, right? That it doesn't include non-consensual content or child pornography, right?

• 49:13Michael Liroff?

  Right.

• 49:14Peter Shamshiri?

  And if you want that, then you probably want one of these large companies, who is US-based, to be the company that your kid uses, frankly.

• 49:21Michael Liroff?

  Right.

• 49:22Speaker 03

  Yeah, yeah. And what's going on here with the majority in sort of like hand-waving, strict scrutiny, and actually like engaging and scrutinizing the law, is that there's no analysis about whether or not the law is effective in its goal,

• 49:34Michael Liroff?

  Right.

• 49:34Speaker 03

  about whether or not it actually protects kids.

• 49:36Michael Liroff?

  Right. And the other way it doesn't protect kids is that a lot of these sites are not secure. You're far more likely to get a virus or some shit that's going to steal your credit card information or your personal information on one of these, you know, weird fringe foreign sites than you are on Pornhub, right? Which is very professionalized and makes, you know, lots of effort to make itself safe and acceptable to federal regulators, to US regulators and their funders. So, yeah, it's just, it's bad policy. Like, it's setting aside everything else. Like, it's, it's not good.

• 50:18Michael Liroff?

  I do think important context for this also, Clarence Thomas writing the majority. I was reading recently, somebody described walking into his apartment when he was between wives after his first marriage ended, but before he married Ginny Thomas. This was when he was in like in his 30s, so a full-grown fucking adult. I think had worked at the EEOC at this point. And they were like, yeah, he had just had like, you know, torn out, like, full-page pornographic spreads, just like pinned to his walls.

• 50:53Michael Liroff?

  Just fucking, yeah.

• 50:55Peter Shamshiri?

  I mean, look, we've only, we briefly referenced the fact that Clarence Thomas, from everything we know, at least at some point in the past,

• 51:03Michael Liroff?

  Yeah.

• 51:04Peter Shamshiri?

  was like, a bit of a porn connoisseur, right? He was a porn guy.

• 51:08Michael Liroff?

  Yeah.

• 51:08Peter Shamshiri?

  Which, by the way, it wasn't easy to be back in the eighties, or whatever, or back in the seventies, right? You had to-

• 51:15Michael Liroff?

  You had to go to weird little fucking movie theaters, which Thomas reportedly did do, he did.

• 51:21Peter Shamshiri?

  Right. It's not like now, where it's just like, you know, www.bigboobs.com, and you're there, right? And it's just you, and you don't have to, this is, you have to go meet another creep, and then buy porn from them. It's like a multi-person operation back in the day. And there's something so weird about how many conservatives, and I don't want to get, I don't want to get, do too much armchair psychology here, but like, it's like this simultaneous revulsion and fascination that they have with this stuff. And like, their belief that it is like evil and addictive and all this stuff, as well as like their deep fascination with it and desire to consume it.

• 52:03Michael Liroff?

  Yeah. I found the passage. "And especially in his younger years, Mayor and Abramson's sources recall Thomas as a pornography aficionado who would enthusiastically discuss it with anyone within earshot. A colleague who stopped by his studio apartment shortly after he'd moved in remembered encountering a mattress on the floor, a stereo system, and a huge compulsively organized stack of Playboy magazines, five years' worth of them, organized by month and year. Thomas had also papered every wall, including those in the kitchen with centerfolds of nude women, joking to his unnerved colleague that the magazines were the only thing worth taking from his marriage."

• 52:44Peter Shamshiri?

  Good lord. My god. Just a full-ass adult. I'll say this, I've met, over the course of my life, like, hundreds of guys who are probably complete sleaze-bags.

• 52:58Michael Liroff?

  Yes.

• 52:59Peter Shamshiri?

  You know what I mean? Just like, incidentally, like, they come into your life briefly, you meet them, maybe you're at their apartment, you know, to buy drugs or something. I've never had anyone bring up pornography to me as like a topic of discussion.

• 53:14Peter Shamshiri?

  Never once.

• 53:15Speaker 03

  Yeah.

• 53:16Peter Shamshiri?

  Never once.

• 53:17Michael Liroff?

  Yeah.

• 53:17Peter Shamshiri?

  Clarence Thomas is more of a perv than every person I've ever met in my entire life.

• 53:26Michael Liroff?

  He just, like, between his politics and his love of pornography, I feel like the, the character in popular media that like most makes me think probably is what Clarence Thomas is like, is the guy in Taxi Driver, you know?

• 53:40Peter Shamshiri?

  Yeah.

• 53:41Michael Liroff?

  Who like, takes his date to one of those porn theaters and is also like, super reactionary anti-crime guy. I feel like that's Clarence Thomas. That's, that's, uh...

• 53:51Peter Shamshiri?

  Yeah. If only his story ended in similar fashion.

• 53:58Peter Shamshiri?

  Probably have to cut that.

• 54:00Michael Liroff?

  Yeah.

• 54:00Peter Shamshiri?

  Yeah, look, again, we're a Supreme Court podcast, and what Clarence needs is the greatest psychologist in the history of the world.

• 54:09Michael Liroff?

  Yes, yes.

• 54:10Speaker 03

  Yeah.

• 54:11Peter Shamshiri?

  So, if anyone knows the best psychologist on earth, please reach out. We need to get him to our boy Clarence immediately.

• 54:19Speaker 03

  Freud is confounded.

• 54:23Peter Shamshiri?

  Freud's scrapping all of his previous theories.

• 54:28Michael Liroff?

  Young Flummoxed does not know what's going on.

• 54:31Peter Shamshiri?

  He's in some kind of weird purgatory, and God's like, you can come into heaven once you figure out Clarence Thomas. And he's just surrounded by a library of like, mountains of books, furiously going through them at all times.

• 54:50Peter Shamshiri?

  All right, folks, next week, we're going to talk about what happened a month ago in LA. The deployment of the National Guard, the resulting lawsuit brought by the ACLU. Now that some time has passed, we actually have a relatively good understanding of what happened on the ground. And we're going to talk about it, talk about what might happen in the future, and what the sort of like, legal angles are for throwing gum in the gears of the Trump administration. Follow us on social media at 54pod. Subscribe to our Patreon,

• 55:30Peter Shamshiri?

  patreon.com/54pod, all spelled out, for access to that episode, other premium episodes, and ad-free episodes, special events, access to our Slack, all sorts of shit. We'll see you next week.

• 55:44Speaker 03

  Bye.

• 55:45Michael Liroff?

  Bye, everybody.

• 55:47Peter Shamshiri?

  Step Pro, are you listening to 54Pod?

• 56:05Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.