Unsatisfying Obscenity (Doctrines)

Obscene for some and not for others.

By and
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First Amendment attorney Ari Cohn joins Advisory Opinions to present the complexity of age restriction policies. But first, Sarah and David update listeners on a barrage of legal activity, including:

-Section 3 of the 14th amendment and the GOP’s saving grace?

-Kansas newspaper suing over police raid

-Hunter Biden’s special counsel (and horrible parenting)

-What can and cannot Trump say?

Show Notes:

-Conservative Case Emerges to Disqualify Trump for Role on Jan. 6

-The Sweep and Force of Section Three

– Listen to the “obscene materials” segment on The Dispatch Podcast

–Jonah’s take on XXX content

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Comments (80)
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  1. Scott Skelton

    Re: Kansas Newspaper. You all said there was more to the story. There is. Just not the way you thought. https://www.npr.org/2023/08/17/1194392001/judge-who-signed-kansas-newspaper-search-warrant-had-2-dui-arrests-reports-say

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    Martin

    If you support the online age-verification stuff, you need to understand a few things, and I think its wrong to write it off as mere inconvenience. It is fundamentally different from showing your ID to someone in person.

    1. There is simply no way to realistically do online age verification to restrict access to disfavored material without requiring the submission of some kind of official ID.

    2. There is no realistic way to submit an official ID online without creating a permanent electronic record that you accessed that disfavored material.

    3. Permanent electronic records are inevitably insecure: they will be hacked, they will be leaked, they will be accessed by the gov’t.

    So as long as your eyes are open, and you understand that you are advocating for the creation of permanent records of who accessed disfavored material and when, inevitably available to the gov’t and criminals, fair enough.

    But I think its unrealistic to think that can or will be restricted to stuff you don't like. You may think thst everyone who watches porn *should* be on a list forever. But some point down the line, the disfavored content will be something you care about more.

    We don't need the First Amendment to protect speech everyone likes and thinks is good. This is what its for.

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      Rjosephpaquette

      Agreed. And, it is easily circumvented. I can imagine teenage boys uploading mom’s drivers license between midnight and two am all around the country.

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    Whit Waldo

    Just because a state requires age verification to access adult content, how is that possibly enforceable to the great many foreign-owned and operated adult websites on the internet? In other words, how isn't this just a lightly cloaked regulatory approach of trying to stifle the production and dissemination of adult content from American-based companies in the name of "save the children"?

    As it's within a parent's right to decide whether their child is old or responsible enough to drink, smoke, learn to shoot firearms or even drive on their private property, this seems like another issue where it should be the parent's responsibility to take the measures necessary to limit their child's access to the content and not the states (e.g. keep alcohol in a locked cabinet, lock unloaded guns in a safe, discuss the harmful effects of smoking and keep the keys away from your child if they've behaved irresponsibly).

    Today, if you (only) visit an adult website anonymously (e.g. don't log into it) in a modern private browser window, the most the website operator can collect is your IP address and bind it to the data of what you searched for and viewed. Most residential IP addresses are cycled over time, so this isn't a great way to personally identify you (especially if more than one person lives at your residence). If you log into it, you exchange some of this anonymity for convenience as this search and view history can be permanently mapped to your username, but there's still no link to your actual identity unless you provide it. These poorly considered laws call for the obliteration of that wall of anonymity ensuring that everything you search for, look at and revisit can be forever linked to your real name, address, date of birth and whatever else is on your identity card.

    David's argument is that this mild breach of privacy is worth it to protect the children. Mild? I recall the case of Prenda Law, a group of attorneys (mostly?) that founded a porn company, created some content and seeded it to torrent websites themselves so they'd get subpeona authority against ISPs to get the real names of those people that downloaded their content to threaten publicly humiliating lawsuits unless a settlement of several thousand dollars was paid upfront (https://arstechnica.com/tech-policy/2017/03/its-official-prenda-copyright-trolls-made-their-own-porn-seeded-on-pirate-bay/). At this this was an American company, so the wheels of justice could spin here, albeit quite slowly. I don't think it's a stretch to imagine an increasing number of sextortion cases stemming from adult website operators (or groups they've sold the information to) that suddenly have vastly more valuable real-world identities tied to all the embarassing material you've ever accessed in the entirety of your life (e.g. https://www.cnn.com/2023/08/14/us/michigan-sextortion-ring-nigerian-suspects-extradited/index.html)

    I sympathize with the concern of parents limiting minor's exposure to unapproved content, but that's what device monitoring software, internet filtering tools and frank conversations with your children are for. In the interest of maintaining the privacy, health and economic well-being of Americans, neither the federal government or states should be implementing such short-sighted laws as I anticipate they will have vastly more negative consequences digitally than the analog comparison of anonymously flashing your ID at the supermarket when you want to buy some wine.

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    Ian Fillmore

    It sounded to me like David thinks it’s a good thing to prevent children from accessing porn, and he’s trying to find a way to do so without running afoul of the first amendment. Ari Cohn sounded like he honestly didn’t think preventing children from accessing porn was super important. And his attention was focused on why these restrictions can never work. This is a common debate tactic. Claim to oppose government policy X because it’s impractical, when your true objection is more fundamental. Sarah tried to sus this out, but Ari mostly dodged the question.

    Personally, I agree with David that keeping kids away from porn is really important. So I naturally found him more persuasive.

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    Rjosephpaquette

    Keeping children from porn.

    First bucket, is there not a technology answer for the problem? Devices provided to children by parents should have blocks for explicit content. I believe there is a way to even have your home router block this content to all devices.

    Second bucket, I see this as a parents job—not the governments. Government could assure that explicit websites are electronically flagged for these parental controls to function properly.

    Last bucket. I raised my children, far more concerned with movies about violence and racism and sexism than the occasional scene of appropriate adult sexual interactions. I think the hyper concern about a teenage boy seeing breasts on TV very odd, when that same young man will watch thousands of murders over the course of his childhood.

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      Martin

      Lenny Bruce had a great bit about the last point. Its a bizarre and frankly sick aspect of our society that depictions of sex (hopefully a normal, fulfilling part of everyone’s life) are so much more taboo than depictions of violence (hopefully not a part of anyone’s life).

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  7. Kalo

    "Your honor, stop trying to make 'marihuana' happen. It's not going to happen."

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    Ryan McKenzie

    We restrict access to movies, video games based on content for minors. The addictiveness of tv, cliffhangers, and porn are not on the same level. I found that counter point by Ari egregious and flippant.

    Let me say what I think the actual agenda is by these laws… I think the chilling effect is intended. I think there would be a dramatic decrease in porn consumption by adults who will not want to give up their anonymity. And, I think that’s a good thing. The porn industry is exploitive and has close ties to many bad things like sex trafficking. So I am all for the age verification checks. If you want to support the industry, put your name on it.

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    Thomas Ward from PA

    I am not sure I agree with the first premise, that porn should rightly be protected by 1A. Of course it is according to current case law, but I think it's 1A claims are dubious.

    Seems to me that porn is addictive and destructive, so could be treated like a drug. If 1A continues to be applied, why not remove anonymity entirely from porn consumption? Require ID and make the users publicly accessible. For U18, require parental notification.

    Problem solved.

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      Thomas Ward from PA

      "Its" not "it's." I am embarrassed, even if it was a spell check error. See how effective shame is?

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  10. Halvor

    Sarah and David keep criticizing the left for wanting to protect Hunter and being unconcerned with evidence that Joe took bribes. In my view, Democrats long ago cut their losses in the Hunter scandals and are counting on the upside of Hunter getting "special treatment" in the form of unusually severe punishment for crimes that some Republicans don't consider to be all that sinful. For false gun applications and false 1040's, let MAGA cast the first stones.

    If there's evidence that Joe is crooked, Democrats will vote to impeach and convict, and they will be delighted to show themselves more virtuous than Republicans.

    I've heard suggestions that Democrats don't care whether the evidence against Trump is sufficient or the charges are legally valid. Naw dogs, as much as Democrats hate Trump, we want fair trials. I'm even good with the possibility of nullification by MAGA jurors -- let the chips fall where they may -- and perhaps a juror in an obscure court in Louisiana will take notice and decide there are already enough young black men in prison.

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      Rjosephpaquette

      President Biden should pardon Hunter, THEN direct the special prosecutor to focus on absolving or charging the President from taking bribes. (For the record, I think this is all on Hunter).
      Its the right thing to do as a father, and the holder of the presidency.

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      1. Halvor

        Good idea but SCOTUS will say it’s unconstitutional for a Democrat to pardon anyone :-) It’s true that Republicans at some point will start shaming Joe for leaving his son out to dry.

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