Tears of Scrutiny

"I'm on laughing gas. And two, there's a Kleenex box with a dead bird on my dining room table."

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It’s a silent spring in Texas as Pornhub pulls out of the state in an act of protest over a law requiring age verification measures. Sarah and David go through the legal battle between the explicit site and Texas AG Ken Paxton.

The Agenda:

—Sarah’s high

—Texas law requiring age verification to access pornography online

—The tiers of scrutiny in constitutional law

—The role of text, history, and tradition

—Going through the Antisemitism Awareness Act of 2023

—Understanding the differences between Medicare and Medicaid can be challenging, even for lawmakers

Show Notes:

—Sarah’s Remnant episode

—Jacobellis v. Ohio

—Ginsberg v. New York

—Ashcroft v. ACLU

—Child Online Protection Act

—Wickard v. Filburn Wilker

—United States v. Carolene Products Company

—David for NYT: Ban Online Porn for Kids

—David for NYT: One Party Has a Serious Foreign Policy Problem. The Other Has a Tantrum.

—A class-action lawsuit against Columbia

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Comments (62)
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  1. Hayes.Nathan.D

    Sarah, you inspired my daughter and me to do our part to rescue a nestling robin we found in our yard today.

    We contacted a bird rescue place and they instructed us to build a makeshift nest for the poor creature.

    It’s now out of reach of our mostly curious boxer-pit mix dog, and its parents are giving it regular feedings!

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    Christopher Jenkins

    Seems like Sarah's repeated use of "dispatch" in this episode is suboptimal branding.

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    Rachelzastrow

    Not about legal opinions at all, but so grateful for the dog/ chicken discussion. We are first time chicken owners, 6 weeks, and our dog who has always despised things that fly is an ass. I'm feeling much better about our inability to convince Lucy NOT TO EAT THE CHICKENS is a losing battle. She's going to want to eat them. That is natural. Thanks for the perspective, David and Sarah!

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      Rachelzastrow

      "And never the twain shall meet"- awesome sauce!

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  4. Currelld

    Shibboleth alert! And nerd warning.

    David mentions the DOE’s interpretation of Title VI, and he is quite right - about Title VI, religion and whatnot. But it is not - as far as I know - the Department of Energy that has taken this view. It is ED, which of course is how you abbreviate Department of Education. Too, it is pronounced Ed, like Ed Asner - not E.D., like an ad featuring Bob Dole. It is a shibboleth because it helps ED policy nerds immediately identify newcomers who sensibly conclude that the Department of Education is the DOE. In fact the DOE is several doors down Independence Ave, first monstrosity on your left. This shibboleth is helpful to insiders but I believe always used peacefully. Nobody is going to be slain by the river.

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  5. Chris Newman

    Sorry for another bit of reflexive First Amendment pedantry, but I feel compelled to cavil at Sarah's passing suggestion that regulation of porn sites could be treated as "commercial speech" getting intermediate scrutiny. As I'm sure she knows when not riffing off the top of her head, the category of "commercial speech" applies only to speech used for selling (i.e., proposing a commercial transaction), not to the selling of speech (i.e., giving access to speech for money). If the fact that porn sites sell their wares made that commercial speech, then the NYT would be in the same boat.

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  6. Mark S

    Sarah pretending she's saying "wheat" when she's repeatedly and clearly saying "weed": https://youtu.be/1rlSjdnAKY4

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  7. McGoogles

    Regarding tiers of scrutiny, can someone explain how the anti abortion laws that only allow exceptions for the death of the mother pass rational basis review? As Sarah pointed out on the podcast, in (almost) all of these emergency cases, the fetus is not going to survive; the pregnancy is effectively over. So in these cases there would be no potential fetal life to consider. In that case, what is the rational basis for denying the mother the care she needs?

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  8. Ready for the Meteor

    Regarding age verification in the physical world vs. age verification online - if you go into a store to buy an age-restricted, potentially embarrasing, but legal product, and the clerk just glances at your license, that's one thing. Would it chill adult access if, instead, the clerk disappeared into the back room with the license for ten minutes? When you authenticate online, you have no idea what logging has or has not occurred. Maybe no sensitive data was retained. Maybe it was retained. You just don't know.

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  9. Jstevenson85

    Sarah says “Pornhub pulls out of Texas…” and I’m not even sure that David caught it.

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    Tam.Kyle

    I’m just here to say the Total Wine ads are driving me nuts.

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    1. Mark S

      And I don't know about the rest of your feeds, but I keep getting instances of the same ad (whether that ad or another) twice or even three times in a row :-/

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