HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP, Supreme Court: We will hear argument this morning in case 23-1122, Free Speech Coalition v. Paxton.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, 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.

[NEWS CLIP: The most closely watched First Amendment case is arriving at the high court in years. The US Supreme Court now says that states can require age verification for online porn.]

Leon: 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 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have pounded our civil liberties like—let's actually skip the metaphor this week.

Michael Liroff: [laughs]

Peter: I'm here with Rhiannon.

Rhiannon Hamam: No pounding. No slamming. No ...

Peter: And Michael.

Michael: No wrestling to submission. [laughs]

Peter: 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 percent, quote, "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.

Michael: That's right.

Peter: So Rhi, since it's your home state and you're the porn girl.

Rhiannon: And I love porn!

Michael: No, wait. Before we get started—before we get started, guys.

Rhiannon: Okay. Yes, go on.

Michael: I do think, you know, for our listeners, a content warning. We're gonna be sticking to the law and the opinions and all that, but again, this is about pornography, so be warned, if your bratty step-sis overhears you listening to this ...

Rhiannon: 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.

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

Rhiannon: 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 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 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.

Rhiannon: 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. 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.

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

Rhiannon: [laughs] Right. Right. This is—it's ridiculous, but they have to—but they're providing something other than the ID only to verify.

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

Rhiannon: 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.

Peter: 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.

Rhiannon: Yeah.

Peter: Like at the airport. And they're like, "Yep, that's you."

Rhiannon: Get those retinas scanned.

Peter: The first time that I was at an airport and they were just like, "Yeah, put your face here," it was like, "Hello, Peter." I was like, "What the fuck is going on? We just let this happen?"

Michael: Yeah.

Rhiannon: 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.

Rhiannon: And they're joined by free speech advocates, adult entertainment websites, 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+ literature.

Rhiannon: 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, 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.

Peter: 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.

Peter: A big thing to understand here is that there's no question that you can ban minors 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 do, in fact, have a constitutional right to access it.

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

Peter: Right. But 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, so there's really no question that it burdens adults' First Amendment rights.

Peter: 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.

Peter: 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 gonna read you what he says. He says, "Because HB-1181 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."

Michael: [laughs] It's just—it's nonsense.

Peter: I'm gonna 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.

Michael: It doesn't make any sense.

Rhiannon: It's nonsensical.

Peter: 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.

Michael: Right.

Peter: Which doesn't make sense. The whole point of a constitutional right is that the government cannot burden it without justifying that burden.

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

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

Michael: Right. That's, like, the whole thing.

Peter: 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.

Michael: Right.

Peter: 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. They wanted to make sure that draft cards were preserved for use in the draft.

Michael: Right.

Peter: 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?

Michael: Right.

Peter: 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, too. But I don't think that his attempt to square them makes any sense.

Michael: No.

Peter: 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, 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."

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

Peter: Right.

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

Peter: Yeah.

Michael: 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.

Peter: Mm-hmm. Mm-hmm.

Michael: But incidental can also just mean "minor," can mean "small."

Peter: Right.

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

Peter: 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.

Michael: Right.

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

Michael: Yeah, exactly.

Peter: 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."

Michael: Right.

Peter: It's just a way of sort of like twisting the actual words in these arguments where, like, it seems plausible, but when you back up, it doesn't actually make any sense.

Rhiannon: Mm-hmm.

Peter: 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, 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."

Michael: Yeah.

Peter: 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.

Peter: We'll talk about the downstream consequences of that shortly, but I think that's the ultimate goal here. All 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 where if a state says, "Hey, we're trying to protect children," then you can actually burden adults' speech quite a bit.

Michael: 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.

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

Michael: It's very law professor-y.

Peter: Yeah?

Rhiannon: Yeah.

Michael: 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. [laughs]

Rhiannon: Good Lord.

Peter: We can't keep doing this.

Michael: [laughs]

Rhiannon: Yeet me to Mars, please.

Michael: 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 analysis of this in her 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 opinion, which I think frankly would be bad if that's all it was because that doesn't meet the moment.

Michael: 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 having a conclusion and working backwards to get to it. 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."

Peter: Yeah.

Michael: 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 gonna 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? 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."

Rhiannon: Yeah, completely circular.

Michael: 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.

Peter: Right.

Michael: So it's about as fiery as Kagan gets.

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

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

Peter: Precedent is like her arena.

Michael: Yeah.

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

Michael: Right.

Peter: 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? 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.

Michael: Right.

Peter: 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.

Michael: Or ACLU v. Ashcroft.

Peter: Right.

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

Peter: Classic Mortal Kombat.

Rhiannon: Finish him.

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

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

Michael: [laughs] Yeah, exactly. Exactly. There is, like, one other thing I wanted to note from her opinion. She talks about the majority saying that the internet's basically developed too fast to keep up for us to rely on our precedents. They say this case, ACLU v. Ashcroft, which was about obscenity online from 2004, isn't really on point as a result. And she says, "Well, look, hardcore pornography was on the internet in 2004." Like, 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 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."

Peter: Right. And sex, right? Like, there's 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.

Michael: Right.

Rhiannon: 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.

Michael: Maybe now's a good time for a break.

Michael: And we're back.

Peter: When you really saw, like, pornographic magazines come onto the market, 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 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 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.

Michael: Right.

Peter: 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 gonna 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?

Peter: In 1973, there's this case, Miller v. California, where the court says obscene speech is not protected by the First Amendment. 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.

Peter: 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?

Rhiannon: Yeah.

Peter: 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 gonna die on?" And maybe in a vacuum you don't, but what you're really arguing for is the establishment of redlines 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, like, a little bit weird, right? You're gonna have to veer into obscenity if you really want to be able to protect speech.

Michael: Yeah, that's right. And 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 a little tinkering at the edges, right? They want to control your every thought, your every—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 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." Again, this is pornography manifested in the propagation of transgender ideology and sexualization of children.

Peter: Right.

Michael: 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.

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

Michael: Yeah.

Peter: 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."

Michael: Right.

Peter: 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.

Michael: 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.

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

Michael: Yeah.

Peter: Misogynists. The classic—the classic enemy of conservatives.

Michael: [laughs] Yeah, exactly. One of the authors of Project 2025 and current head of the Office of Management and Budget, Russell Vought was caught on 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 Texas. It's the purpose of the law, and it's working as intended.

Peter: Mm-hmm.

Rhiannon: 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 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, 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.

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

Rhiannon: [laughs] Right.

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

Michael: Because they are all addicted to pornography.

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

Rhiannon: Yeah, and it's a total projection.

Peter: 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.

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

Peter: 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, if I had to guess.

Michael: 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 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. Christin Bentley, a member of the state Republican executive committee in Texas and a big advocate for one of these book ban bills, says she backs it because she's "concerned about sexually explicit books and books that tell kids to go look at porn online."

Rhiannon: Absolutely in the public school library for second graders.

Peter: Yeah. No, those classic books that we all know that tell kids to go look at porn online.

Michael: 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?

Peter: Right.

Michael: Although I will say Bentley mentioned Blue is the Warmest Color. And I haven't read that book, but I watched the movie. Fair. [laughs] I was watching that movie, and my wife yelled from the other side of the house, "Are you just watching porn?"

Rhiannon: [laughs]

Michael: It was a lot. One of the groups in Texas that's 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, a lot of whom find clients online now, and so it is 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 these laws can also take the form of government verification, in which case 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.

Rhiannon: [laughs]

Michael: 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 conservative's idea of what's pornographic and explicit in sexual material is very different from what I think the normal person's is.

Rhiannon: Yeah. And what they're handing the state is you can just say it's protecting children and we'll give you—we'll give you the out.

Michael: It just has to be 30 percent explicit, 30 percent pornographic.

Peter: 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 adult's 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? 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.

Rhiannon: Yeah.

Peter: 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.

Rhiannon: 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, like, 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?

Rhiannon: And so here you see a similar thing. It is understandable, and in fact, most people probably agree that it was okay with them if it was harder for their kids to 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—in the larger project of implementing, brick by brick, 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.

Rhiannon: 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 benefit 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, 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.

Rhiannon: 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, 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 and trans kids getting health care, taking up such a large proportion of the tiny amount, relatively speaking, of cases that the Supreme Court takes, 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 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.

Michael: 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 so they are reaching for power to arrest those social trends. But, like, you know, the fucking government can't tell you whether or not you like trans people or whether or not you want your kid to have friends of many races and all that shit, right? Like, the government can't tell you that, and so they're just getting more and more authoritarian and more and more demagogic as they try to shape culture with institutions that are not really fit for that task.

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

Peter: 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? Right? 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 percent or more sexual material harmful to minors. What does that mean?

Rhiannon: Yeah.

Peter: Thirty percent based on what? Thirty percent of the web pages have offensive material? Is it thirty percent of the total video content by length, by volume? What? By what? Like, what are you talking about, exactly? Right? 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 sort of—it lends itself to being abused. And to sort of build on what you're saying, Rhi, they could have taken up the vagueness question.

Rhiannon: Yeah.

Peter: Right.

Rhiannon: Yeah.

Peter: 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? 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 sort of absurdity of this case and what's so frustrating about it, and what I 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, like, 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.

Rhiannon: 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, like, defend is, you know, "No, actually, sorry, it should be easier for kids to access porn." Like, so just 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.

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

Rhiannon: Yes.

Michael: 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 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, that little teenagers are gonna go to websites that are hosted in Russia or Eastern Europe. Or whatever.

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

Michael: Yes, that was my next point, which is ...

Peter: Yeah, 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 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. But I would imagine that most parents would prefer that if their kids were gonna 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?

Michael: Right.

Peter: 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.

Michael: Right.

Rhiannon: 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 about whether or not it actually protects kids.

Michael: 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 gonna steal your credit card information or your personal information on one of these weird fringe foreign sites than you are on Pornhub, right? Which is very professionalized, and makes lots of effort to make itself safe and acceptable to federal regulators, to US regulators and their funders. So yeah, it's bad policy. Like, setting aside everything else, like, it's not good.

Michael: 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 Ginni Thomas. This was when he was in his 30s; he's a full grown fucking adult. I think had worked at the EEOC at this point, and they were like, "Yeah, and he had just had, like, you know, torn out, like, full-page pornographic spreads just, like, pinned to his walls. [laughs] Just fucking ...

Peter: I mean look, we've briefly referenced the fact that Clarence Thomas, from everything we know, at least at some point in the past, was, like, a bit of a porn connoisseur, right? He was a porn guy.

Michael: Yeah.

Peter: Which by the way, it wasn't easy to be back in the '80s or whatever, or back in the '70s, right? You had to ...

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

Peter: 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—you have to go meet another creep and 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—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.

Michael: Yeah. I found the passage. "And especially in his younger years, Mayer and Abrams'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 had 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."

Peter: Good lord! My God!

Michael: [laughs]

Peter: 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 sleazebags.

Michael: Yes.

Peter: 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. Never once. Never once.

Michael: Yeah.

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

Michael: [laughs] He just—like, between his politics and his love of pornography, I feel like 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?

Peter: Yeah.

Michael: 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 ...

Peter: Yeah. If only his story ended in similar fashion.

Michael: [laughs]

Peter: We'll probably have to cut that.

Michael: Yeah.

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

Michael: [laughs] Yes. Yes.

Rhiannon: Yeah. Yeah.

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

Rhiannon: Freud is confounded.

Peter: Freud's scrapping all of his previous theories.

Michael: [laughs] Jung, flummoxed. Does not know what's going on.

Peter: 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.

Rhiannon: [laughs]

Peter: 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 gonna 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 @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod—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.

Rhiannon: Bye!

Michael: Bye, everybody.

Peter: Step-bro, are you listening to 5-4 pod?

Michael: [laughs]

Michael: 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. 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/fivefourpod.