The Hilariously Twisted History of the Supreme Court and Porn
In the 1960s and early 1970s, the Supreme Court hosted one of the most unusual film clubs in America. Justices typically familiarize themselves with upcoming cases and petitions by reviewing the records and exhibits from the lower courts. As a result, at least once per term at that time, most of the justices and their clerks would retreat to one of the marble courthouse’s inner chambers to watch pornographic films.
The legal threshold at the time for obscenity laws hinged on whether a banned work had any social value. Some pornographers tried to work around this hazy standard by producing films that resembled med-school teaching materials or social commentary. In the 1970 “documentary” Sexual Freedom in Denmark, for example, a straight-laced narrator surveyed changing sexual mores in the Scandinavian country in between lengthy scenes of masturbation and intercourse.
Bob Woodward and Scott Armstrong described the justices’ reaction to the film during one movie session in their 1979 book The Brethren. “[Justice Harry] Blackmun sat stone-faced, ignoring the banter from [Justice Thurgood] Marshall and the clerks,” they wrote. “Marshall turned to him when the lights came on as the projectionist changed reels. ‘Well, Harry, I didn’t learn anything, did you?’”
It’s been a long time since the Supreme Court has hosted such gatherings. But the justices could soon play the role of national smut censor once again with the case Free Speech Coalition v. Paxton. In oral arguments on Wednesday, the court appeared ready to uphold a Texas law that required websites that host certain kinds of “sexual materials” to verify their user’s ages before allowing access.
At first glance, Paxton does not resemble the types of obscenity cases that once littered the high court’s docket. It does not deal with a specific prohibited work; it does not invite judges and litigants to decide whether some film or book’s social value outweighs its prurient themes. Nonetheless, a majority of the justices appeared ready to curb First Amendment protections for sexual content—and potentially reshape the internet alongside it.
This is not a new arena for the justices: The modern age of internet pornography can be traced in part to early rulings by the Supreme Court on obscenity and the internet. Congress first passed the Communications Decency Act of 1996, which in part forbade the intentional distribution of “obscene and indecent materials” to underage users. The justices struck it down one year later in Reno v. American Civil Liberties Union on First Amendment grounds because its terms were overly broad, therefore declining to treat the internet differently than other communication mediums.
Federal lawmakers responded by passing a narrower law, the Child Online Protection Act, in 1998. The justices again rejected it in a 5-4 ruling in Ashcroft v. ACLU in 2004 on free-speech grounds. Justice Anthony Kennedy, writing for the court, held that the law could not survive strict scrutiny—the most stringent level of judicial scrutiny—under the First Amendment because it was not the least restrictive means of achieving its goals. He noted, for example, that parents could achieve the same results by internet filters and monitoring their kids’ usage.
The Fifth Circuit Court of Appeals upheld the Texas law last year, ruling that it would apply rational-basis review, the most lenient form of judicial review, to uphold the law instead of strict scrutiny, the extraordinarily strenuous form of review often used in First Amendment cases—and, more specifically, by the Ashcroft court. Two of the judges on the panel declined to apply Ashcroft because they concluded that technological changes had outpaced it; the third judge criticized them in dissent for essentially ignoring Supreme Court precedent.
At oral arguments on Wednesday, more than a few of the justices agreed that technology had outpaced Kennedy’s reasoning. “The iPhone was introduced in 2007 and Ashcroft was decided in 2004,” Justice Amy Coney Barrett told the lawyer representing the online porn industry. “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.”
Justice Samuel Alito pointedly asked the same lawyer why rational-basis review was “not appropriate here,” effectively suggesting that it was. Other justices at least seemed willing to abandon Ashcroft’s use of strict scrutiny in favor of older, offline precedents. Justice Brett Kavanaugh suggested that the court could adopt the stance taken by recently retired Justice Stephen Breyer in his Ashcroft dissent, who disagreed that filters amounted to a “less restrictive means” for strict-scrutiny purposes.
Texas lawmakers passed House Bill 1181, the law in question, in 2023. It requires websites that host pornography or other sexually explicit materials to verify their users’ ages before allowing them access. This verification is typically done by providing some form of government ID to the website’s operators or to a third-party service. More than a dozen other states, mostly in the conservative Midwest and South, have passed similar measures.
The law’s stated goal is to prevent underage Texans from accessing such materials without banning it outright, as in past obscenity cases. It defines “sexual material harmful to minors” as any material that “exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction” of sexual content. Critics have described this law and others like it as an attempt to ban pornography outright by imposing chilling effects on adult users as well.
Definitions matter when it comes to these types of laws. That content includes “a person’s pubic hair, anus, or genitals or the nipple of the female breast,” as well as “touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals” or “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.” Qualifying content must also “[lack] serious literary, artistic, political, or scientific value for minors.”
That last phrase is taken almost word for word from Miller v. California, the 1972 case that stands as the Supreme Court’s prevailing standard on when states can ban obscene material. The high court said that obscenity is material of a “sexual or excretory” nature that lacks “serious literary, artistic, political, or scientific value.” It also avoided setting a national metric for obscenity by requiring judges to apply “contemporary community standards” when assessing targeted materials.
The Miller test was the culmination of the court’s two-decade search for a workable definition of obscenity—one that would not create a First Amendment right to distribute hardcore pornography, while also protecting Lady Chatterley’s Lover, nude paintings, edgy French films, and genuine medical teaching materials from overzealous censors. It closed the door opened by the 1957 case Roth v. United States, which had upended the nation’s prior approach to restricting pornography.
While the Roth justices had held that the First Amendment did not protect obscenity, it also narrowly defined what counted as obscene in the first place. State and local officials sought to ban what they considered to be offensive and inappropriate, while those targeted by such bans pushed back on Roth’s requirement that such materials be “utterly without redeeming social importance.”
In 1964, for example, the court took up Jacobellis v. Ohio, a case where Cleveland Heights officials had fined a local theater owner for playing an otherwise unremarkable French film that had some sexual content in it. The nine justices ruled in the defendant’s favor but struggled to come up with a common line to draw. No one opinion received the votes of five justices; Justice Potter Stewart underscored the subjectivity of the issue with his famous concurring opinion.
Stewart concluded that only “hardcore pornography” fell outside the bounds of the First Amendment. “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so,” he wrote. “But I know it when I see it, and the motion picture involved in this case is not that.”
Targeting a website like Pornhub is one thing; its name is literally “Pornhub.” But states and counties rarely stop at the most obvious examples. Texas, for example, has banned a wide range of books from schools on the grounds that they contain inappropriate sexual material, including works such as The Handmaid’s Tale and Game of Thrones. Books featuring LGBT characters and themes are targeted most frequently.
If the online porn industry’s efforts to overturn the Texas law in this case fail, future battles over age-filtering’s constitutionality will likely take place on an as-applied basis. Instead of proving that the law is unconstitutional in all possible cases, those plaintiffs would have to prove that it is unconstitutional as it applies to them. That could require the court to get into the weeds of whether, say, one state can restrict access to apps like Max or Amazon Prime for hosting movies that show nudity and sexual acts because a minor could conceivably access it.
While age-verification requirements might seem reasonable at first glance—and while there is an active, important debate about pornography’s role in modern American life—they also carry privacy concerns that have serious First Amendment implications. Most Americans consume pornography in some form; very few of them would probably be comfortable with handing over their passport or driver’s license to a website every time they do it. The plaintiffs noted in their brief that Texas did not “establish any data-security requirements or disclosure prohibitions for entities conducting age verification or others that receive identification information as part of the verification process.”
At one point, Kavanaugh noted that countries such as France and the United Kingdom have adopted or tried to adopt similar age-verification measures. “To the extent that they require age verification, the way that they’re doing it looks fundamentally different from Texas because, as Your Honor knows, Europe builds in all sorts of ferocious privacy protections and penalties if there are violations,” Derek Shaffer, the lawyer representing the industry, explained. “That’s a fair point there,” Kavanaugh acknowledged.
Some of the justices appeared to recognize the content-based direction that this debate is heading. “Is it like the old Playboy magazine?” Alito asked at one point, referring to the most popular pornographic websites. “You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley, Jr.?” If the court ultimately sides with Texas on all points and reduces First Amendment protections for sexual content, red-state lawmakers could seek to enact an even wider range of restrictions on it.
It’s highly doubtful that the current justices would bring back the movie nights of the Warren and Burger eras. But they may have to eventually reckon with why their predecessors held them in the first place—and why they ultimately gave up trying to be the porn police.