Porn Hub wants people to look at porn, so in the interest of its business model, it filed a lawsuit when Texas passed a law requiring online purveyors of pornography to do more (a lot more) to verify users’ age before allowing them access.
Self-verification, typing a date on a webpage that suggested you were 18 or older, was not enough. Porn Hub sued, and a lower court accepted PornHub’s First Amendment argument, but the Fifth Circuit, on appeal, disagreed.
Applying the lowest standard of review, called rational basis, the appellate court ruled that Texas’s interest in protecting its children from accessing harmful material was rational. And in possibly better news for the future, the three-judge panel went further, citing long-standing law for the general principle that the government has a rational interest in controlling certain kinds of materials for kids — in general.
Jeff Childers includes the Fifth Circuit’s justification for upholding the age verification portion of the law (wait for progs), citing Justice Ginsberg.
The decision in Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), reaffirmed a robust reading of Ginsberg’s principle: “It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults.” Id. Ginsberg’s central holding—that regulation of the distribution to minors of speech obscene for minors is subject only to rational-basis review— is good law and binds this court today.
In other words, it is not book banning or censorship for a state to take an interest in limiting the unfettered access of minors to age-inappropriate material. That then must include public schools or libraries.
“…Friday’s decision also delivered fresh ammunition to parents working to scrape obscene books and pornographic materials out of schools. If the state has a rational, constitutional interest in controlling minors’ access to obscene materials on the Internet, how much more obviously rational is the state’s interest in protecting kids the very same way in the school library?
Erznoznik v. City of Jacksonville overturned a local ordinance restricting the content permitted on drive-in movie screens but recognized a State’s interest in protecting children from obscene “speech.” The Fifth Circuit has affirmed the state’s interest, but it is unclear whether Pron Hub is prepared to take the next step. To ask the Supremes for their thoughts.
Outside the Fifth Circuit, State interests are obvious. Every city, county, or state government has obscenity statues. Public decency. Nudity. The rejection of any number of challenges by the Free the Nipple folks. It is not new “news” that people and their governments have guardrails in place meant to manage minors’ access to a wide range of things, at least in public spaces.
Correct me if I’m wrong, but aren’t Public Schools and Public Libraries … well, public?
