obscenity – Techdirt (original) (raw)

5th Circuit Is Gonna 5th Circus: Declares Age Verification Perfectly Fine Under The First Amendment

from the free-speech-is-weird-in-texas dept

Can the 5th Circuit ever do anything not crazy? You may recall that Texas, like so many states, passed a law, HB 1181, that required age verification for adult content sites. This law also required nonsense “health warnings” to be plastered on those sites, which did not come from any actual health experts. The Free Speech Coalition sued over the bill and won a quick injunction. The court deemed it to be obviously unconstitutional, siding with multiple other courts (including the Supreme Court) which have all found age verification requirements to access speech to be unconstitutional under the First Amendment.

Soon after that, though, the 5th Circuit removed the injunction blocking the law with no explanation at all (which seems to be how the 5th Circuit rolls…). This allowed Paxton to sue Pornhub’s parent company Aylo for allegedly violating the law.

Now, we finally have the full 5th Circuit ruling and it is incredibly problematic. It could have been worse because it could have allowed the mandated fake health warnings, but (thankfully) it kept those enjoined. However, it went against a ton of other courts in saying that age verification is, like, totally constitutional. The majority opinion claimed that they could use the much lower “rational basis” test to determine the constitutionality of age verification restrictions, rather than strict scrutiny.

The proper standard of review is rational-basis, not strict scrutiny. Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography. Therefore, the age-verification requirement does not violate the First Amendment. Further, Section 230 does not preempt H.B. 1181. So, the district court erred by enjoining the age-verification requirement.

The court leans heavily on the 1968 case Ginsberg v. New York. This case allowed for the restrictions on the sale of “obscene” material to children. The court insists that more recent cases don’t apply here, including Ashcroft v. ACLU and Brown v. Entertainment Merchants Association. In Ashcroft v. ACLU, the court rejected a bill to restrict access to content “harmful to minors.” In Brown v. Entertainment Merchants Association, the court rejected a bill limiting kids’ access to violent video games. The court insists that these cases don’t apply here, since the material is “obscene.”

The Ashcroft case seems almost directly on point. COPA included age verification regarding harmful content to minors and the Supreme Court rejected it. Yet the 5th Circuit now says that the reason was because the Supreme Court only applied “strict scrutiny” in the Ashcroft case, because it was only asked about strict scrutiny, and not which test should apply. If only it had applied rational basis review, according to the majority, it would have found COPA fine.

Ashcroft II supplies plaintiffs’ best ammunition against H.B. 1181. After all, despite Texas’s protestations, H.B. 1181 is very similar to COPA. Sure, COPA was criminal, and H.B. 1181 is civil. And COPA allowed age-verification as an affirmative defense, yet H.B. 1181 requires it upfront. But those changes do not affect our analyses here. 24 Ashcroft II, finding that COPA probably failed the narrow tailoring component of strict scrutiny, sent the case back down for trial. 542 U.S. at 673. One might read Ashcroft II for the proposition that COPA (and consequently H.B. 1181) fail strict scrutiny. We can even assume that here.

But that assumption does not end our analysis. Though Ashcroft II concluded that COPA would fail strict scrutiny, it contains startling omissions. Why no discussion of rational-basis review under Ginsberg? And why no analysis of intermediate scrutiny under Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)? We find those omissions particularly surprising considering that the Court in Reno felt the need to distinguish those at length. See Reno, 521 U.S. at 865–68.

We see only one answer and therefore only one way to read Ashcroft II consistently with Ginsberg: Ashcroft II did not rule on the appropriate tier of scrutiny for COPA. It merely ruled on the issue the parties presented: whether COPA would survive strict scrutiny….

… In other words, the petitioners did not challenge the applicable standard of review. Because that is not a jurisdictional argument, the Court did not have to correct them sua sponte.

And thus, because the 5th Circuit has decided rational basis is the proper standard, it can effectively ignore Ashcroft.

The 5th Circuit also has to bend over backwards to ignore the US v. Playboy case. The case involved another part of the Communications Decency Act, forcing adult TV channels to block access or scramble content during certain hours to protect kids from access, which was also found unconstitutional. But the 5th Circuit says that’s different because… scrambling video signals is not age verification.

H.B. 1181 is plainly more like the regulation in Ginsberg than like the regulation in Playboy. H.B. 1181 allows adults to access as much pornography as they want whenever they want. The law in Playboy did not. The burden in Playboy, although not a ban, is different in kind from whatever “burden” arises from the same type of age-verification required to enter a strip club, drink a beer, or buy cigarettes. The law in Ginsberg, like H.B. 1181, targeted distribution to minors; the law in Playboy targeted distribution to all. That is, once certain an individual is not a minor, H.B. 1181 does nothing further. The same cannot be said of the law in Playboy, which imposed substantial burdens even after an individual established his or her majority.

And thus, the court says it can ignore a whole series of Supreme Court rulings trying to block access to adult content and magically apply rational basis review, which, it says, “we do that easily.”

85-year-old Judge Patrick Higginbotham, who talks up the importance of the First Amendment, vigorously dissents on this part:

The years that followed vindicated Madison’s placement of the First Amendment with its rails for the paths of government, married to the individual’s right of identity and self-expression in their myriad forms. At its core, the right of free speech moves with and finds expression in changes of technology, with accompanying efforts by Congress and state legislatures to find accommodation. In this dynamic mix, Texas has the right—indeed, the obligation—to protect its children. And consistent with this task, it is a given that the State enjoys great latitude in identifying and addressing injury to persons and institutions. Yet implicit in this legal churn remains the core principle that state power must operate within the sinews of the First Amendment, ever a challenge to all of government, a challenge requiring government to attend to its defense, ever faithful to Madison’s gage of the reluctance of the States to relinquish their sovereign interests to the forming of the Union, a concern he further responded to with the assuring language that “Congress shall make no law.”

As Higginbotham rightly notes, contrary to the majority decision, the bill impacts not just “obscenity” (in which case Ginsberg could apply) but plenty of perfectly legal speech as well:

To these eyes, H.B. 1181 cannot be reasonably read to reach only obscene speech in the hands of minors. Although the statute incorporates Miller v. California’s definition of obscenity, H.B. 1181 limits access to materials that may be denied to minors but remain constitutionally protected speech for adults. It follows that the law must face strict scrutiny review because it limits adults’ access to protected speech using a content-based distinction—whether that speech is harmful to minors.

The majority says (in passing, without much explanation) that all adult content should be automatically considered “obscene” when viewed by a minor. The dissent points out that you can’t just say that.

Although obscene speech lies outside the First Amendment’s umbrella of protection, not all sexual expression is obscene.14 Indeed, “sexual expression which is indecent but not obscene is protected by the First Amendment.”15 What Plaintiffs refer to as “exclusively ʻsoft core’ nude modeling,” for example, constitutes non-obscene sexual expression, as would many romance novels, or—to use another example from the briefing— Marlon Brando movies. And protected sexual expression encompasses materials that are appropriate for adults but inappropriate for minors. For example, scenes from the popular show “Game of Thrones,” the 1985 film “The Color Purple,” or the 2011 film “The Girl with the Dragon Tattoo” all contain “depictions” of sexual intercourse that may be “patently offensive” to young minors and regulated under H.B. 1181, but still offer artistic or cinematic value for adults.

While I agree with the majority that H.B. 1181’s plain text applies only to “sexual material harmful to minors,”16 the statute cannot be reasonably read to regulate only obscene content. In the words of the district court, H.B. 1181 goes “beyond obscene materials” and “regulates all content that is prurient, offensive, and without value to minors.”17 In doing so, the law infringes upon adults’ protected sexually expressive speech.

And thus, he says, strict scrutiny must apply (and everyone admits the bill cannot pass strict scrutiny).

Content-based restrictions on protected speech are presumptively unconstitutional, valid only if the government proves they are narrowly tailored to further a compelling interest. By the statute’s plain language, H.B. 1181 applies only to websites with content “more than one-third of which is sexual material harmful to minors.” Because H.B. 1181 regulates only a particular type of speech, “[t]he speech in question is defined by its content; and the statute which seeks to restrict it is content based.” As such, H.B. 1181 is subject to strict scrutiny.

As the dissent notes, the idea that Ginsberg makes it okay to apply rational basis review in this case flies in the face of what Ginsberg itself said and what the Supreme Court has said over the past 50 years.

The district court found the State “largely concede[d]” that strict scrutiny should apply, but looking to Ginsberg, the State now asks this Court to find that this content-based restriction does not warrant strict scrutiny. While the majority credits this argument, I cannot—for Ginsberg does not here call for rational basis review, and the Supreme Court has unswervingly applied strict scrutiny to content-based regulations that limit adults’ access to protected speech.

In Ginsberg, the Supreme Court upheld a New York criminal obscenity statute prohibiting the knowing sale of obscene materials to minors. Ginsberg was convicted of violating the statute after he sold two “girlie magazines” to a sixteen-year-old. Ginsberg asserted that the New York statute violated the First Amendment because “the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend upon whether the citizen is an adult or a minor.” He went on to argue “that the denial to minors under 17 of access to material condemned by [the statute], insofar as that material is not obscene for persons 17 years of age or older, constitutes an unconstitutional deprivation of protected liberty,” which Ginsberg likened to the deprivations of liberty recognized in Meyer v. State of Nebraska, Pierce v. Society of Sisters, and West Virginia State Board of Education v. Barnette.

The Supreme Court disagreed, focusing on the fact that the prosecution concerned a single sale in Ginsberg’s store to a minor. Despite observing that the magazines were “not obscene for adults,” the Court held the New York regulation did not invade the “minors’ constitutionally protected freedoms.” Explaining that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults,” the Court found the law rationally related to the State’s interest in protecting minors, and upheld Ginsberg’s conviction.

Ginsberg’s force here is its recognition of a state’s power to regulate minors in ways it could not regulate adults. But this overriding power to protect children does not answer our essential question: whether H.B. 1181 imposes a content-based restriction or causes an “unnecessarily broad suppression of speech addressed to adults.” If so, “the answer should be clear: The standard is strict scrutiny.”

Indeed, the dissent points out how there are no recent cases that suggest Ginsberg could possibly apply here.

It is no failure of advocacy that the State has cited to no case since Ginsberg in which the Supreme Court applied rational basis review to regulations impinging adults’ access to protected speech. No such case exists. Instead, since Ginsberg, the Supreme Court has consistently applied strict scrutiny to content-based regulations that infringe upon adults’ protected speech.

The dissent also points out how HB 1181 looks an awful lot like the section of the Communications Decency Act that was tossed out as unconstitutional in Reno v. ACLU.

H.B. 1181 is strikingly similar to the CDA and, in some ways, goes even further. Like the CDA, H.B. 1181 does not limit regulated speech to conduct proscribed by Texas law. Like the CDA, H.B. 1181 regulates more than just “sexual conduct.” The CDA prohibited speech regarding “excretory activities” as well as “organs” of both a sexual and excretory nature, and H.B. 1181 similarly restricts depictions of “pubic hair” and “the nipple of the female breast.” By its text, H.B. 1181 goes further than the CDA regarding the format of depictions it covers, as it applies to “descriptions of actual, simulated, or animated displays or depictions” of specified body parts, conduct, and undefined “exhibitions,” while the CDA applied, inter alia, to “image[s].” In essence, Texas’s contention that H.B. 1181 closely tracks Miller fails to persuade.

The majority opinion also rejected the idea that Section 230’s preemption section voids this law. Under Section 230, it says that no state law that seeks to hold service providers liable for third party speech is valid. And this law clearly does that. But the majority disagrees by creating the most convoluted explanation for how section (c)(1) of Section 230 works.

The whole point of (c)(1) is that you cannot hold a service provider liable as the publisher of third-party speech placed on their platform. But the 5th Circuit is reinterpreting that to say it only applies to defamatory content, and not “offensive material.” Yet that’s not what any other court has said.

The 5th Circuit even admits that in a previous case, Doe v. Myspace, the very same 5th Circuit already said that 230 broadly immunizes platforms against any laws that would hold them liable for 3rd party speech. Indeed, the majority opinion admits this “complicates the analysis.” But instead of following that precedent, this 5th Circuit panel says it’s different because… now (it claims) 230 only applies to harm from content directly, not harm from complying with the law.

The dissent again points out how fundamentally bonkers this reading is and is clearly at odds with the MySpace ruling where the court said directly that it protects against “all claims stemming from their publication of information created by third parties.”

The State’s first two arguments are foreclosed by Doe v. MySpace, wherein this Court noted that “Congress provided broad immunity under the CDA to Web-based service providers for all claims stemming from their publication of information created by third parties[.]” Although “[p]arties complaining that they were harmed by a Web site’s [sic] publication of user-generated content . . . may sue the third-party user who generated the content,” they may not sue “the interactive computer service that enabled them to publish the content online.”

The majority decision just ignores that.

Even more to the point, the dissent notes that in Doe, the court said that mandated age verification violates 230’s preemption clause.

But this Court held explicitly in Doe that requiring websites that only host third-party content to implement age-verification measures violates Section 230. The CDA immunizes platforms from all liability associated with hosting third-party content and it preempts all statutes inconsistent with this mandate. H.B. 1181 imposes severe civil liability, mandatory disclosures, and age verification requirements based on the presence of third-party content. That websites will be safe from H.B. 1181’s significant civil penalties if they implement the required age-verification system is no answer.

The majority gets one thing right: keeping the injunction on the mandatory health warnings, and rejecting the claims that the Zauderer case allows such mandatory disclosures. We’ve discussed the problems of how courts have been looking at Zauderer before, and at least here, the 5th Circuit seems to understand at least some of the limits of Zauderer.

As a reminder, Zauderer allows for mandatory disclosures over (1) commercial speech related to (2) advertising if and only if (3) the mandated speech is uncontroversial.

And thankfully, the panel recognizes that the mandatory warnings about “the harms” of porn are highly controversial and says Zauderer does not apply. It points out that both sides presented “credentialed and persuasive experts” that the mandated warnings are accurate, but also that they’re not. And given that:

We are not scientific journal editors, much less social scientists, behavioral experts, or neurologists. The courts generally are not the place to hash out scientific debate, particularly not on so contentious a topic as the impacts of engaging with pornography. Experts must do that in academic journals, studies, and presentations. Therefore, the record leaves us with no option but to declare that the health impacts of pornography are currently too contentious and controversial to receive Zauderer scrutiny.

And thus, the 5th Circuit actually gets this one bit right, but really messes up the age verification (and 230 parts). I would guess that the Free Speech Coalition is likely to ask the Supreme Court to hear an appeal, but who knows. It could be yet another highly consequential internet regulation bill that the Supreme Court needs to strike down…

Filed Under: 1st amendment, 5th circuit, adult content, age verification, free speech, ken paxton, obscenity, rational basis review, strict scrutiny, texas
Companies: free speech coalition

Protect Yourself From Sen. Mike Lee’s Anti-Porn PROTECT Act

If you work for a living, do you feel coerced into doing your job? According to Senator Mike Lee, if you have anything to do with pornography, and need to earn money in the industry, it must be coercion at play.

While the world continues to be fooled by the Kids Online Safety Act’s false promises of a child-proof internet made entirely out of Roblox gift cards, Sen. Mike Lee of Utah is pimping out his latest proposal: the Preventing Rampant Online Technological and Criminal Trafficking (PROTECT) Act.

According to Lee, the act is meant to hold large technology companies accountable for rampant cases of image-based sexual abuse on the internet. While the intentions may sound reasonable, the actual act is an unenforceable hodgepodge of bad ideas.

This isn’t surprising. Mike Lee is known for his idealistic, do-nothing internet safety bills. Lee has, for example, tried pushing his so-called Interstate Obscenity Definition Act, which would define a national standard for obscenity, without the Miller test, in the spirit of the antiquated, unconstitutional Comstock laws.

He also introduced the SCREEN Act, which is his attempt to implement national age verification requirements. He’s a bleeding heart for the “protect the kids” crowds that are essentially anti-porn, pro-censorship advocates.

The PROTECT Act takes some of the worst elements of Lee’s previous bills and wraps them in a new censorship package.

The bill requires web platforms to verify the ages of individuals who appear in sexually explicit imagery. This is presented as a measure to counter child sexual abuse material (CSAM) and non-consensual intimate imagery (NCII) online.

The U.S. Department of Justice already enforces strict federal obscenity laws. In the adult entertainment industry, producers of consensual, legal pornography must verify the age of participants and retain those records through a custodian of records. That custodian is usually a lawyer, senior executive, or c-suite member, like a CEO. Not keeping or falsifying the records could lead to civil and criminal penalties, including violations of child sexual abuse laws.

If Sen. Lee gets his way with the PROTECT Act, this legal standard would apply to virtually every web platform.

This includes platforms owned by Meta, like Facebook and Instagram. A press release from Sen. Lee’s office on January 31 features an excerpt of a hearing between Meta CEO Mark Zuckerberg and himself to illustrate big tech’s shortcomings.

But one issue in the bill that drew my attention is the section on “coerced consent.”

This term defines consent to engage in sexual activity due to coercion, but with a wildly broad definition of “coercion.” To put it simply, if the act becomes law, the act of paying a porn performer or adult content creator is a crime within certain parameters and conditions.

As worded, the bill would invalidate consensual sex work:

“[C]oerced consent” means purported consent obtained from a person— (A) through fraud, duress, misrepresentation, undue influence, or nondisclosure; (B) who lacks capacity; or (C) though exploiting or leveraging the person’s—(i) immigration status;(ii) pregnancy;(iii) disability;(iv) addiction;(v) juvenile status; or (vi) economic circumstances.

Under this language, “economic circumstances” could legally invalidate consent to appear in a legal porn scene. If a performer needed the money from an adult content production for paying for rent, groceries, health care coverage, or child care fees, under Lee’s law, that could mean they could not give consent. Any consent due to such “economic circumstances” could be deemed coercion.

This definition completely outlaws consensual and legal pornography production, which is otherwise protected under the First Amendment.

The bill also invalidates consent based on immigration status, pregnancy, disability, addiction, or juvenile status. Current law already bans those under 18 from appearing in commercial pornography. Depicting an underage individual is CSAM and considered a sex crime. Minors already cannot legally consent, especially in imagery.

Coerced consent doctrine complicates the already clear standard of coercion versus consent, including non-consensual imagery. This is clearly anti-pornography lawmaking, pretending to be about coercion.

This is obvious in just looking over who supports the PROTECT Act, including the socially conservative American Principles Project, affiliated with the Heritage Foundation’s Project 2025 coalition and the far-right campaign to outlaw legal porn completely.

The other group that endorsed the bill is the National Center on Sexual Exploitation. The center sells itself as non-partisan and non-religious, but is notorious for backing Christian nationalists and anti-porn policies, labeling magazines like Cosmopolitan as “pornographic.” The PROTECT Act is a pipe dream.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Filed Under: adult content, coerced consent, consent, mike lee, obscenity, pornography, protect act

Sending Cops To Search Classrooms For Controversial Books Is Just Something We Do Now, I Guess

from the bigots-sure-love-them-some-fascism dept

Thanks to politicians (including a former president) being overly willing to scratch the bigoted itch of a voting bloc that appears to prefer the brutal caress of fascism to the freedoms of a democratic republic, far too many state and local legislators are crafting and enacting laws designed to relegate a whole lot of the nation to the lower echelons of society.

These are people who believe they’re Norman Rockwell characters residing in disturbingly lit Thomas Kinkade houses. They believe they have the moral high ground, if only because they say weird stuff about God while going about government business. They claim they’re worried about the children. But they don’t actually care about the children. They only care whether this supposed concern can be leveraged to demean and destroy people they don’t like.

The same people who claimed to care so much about children that they worked tirelessly to enact abortion bans are the same people that would rather see underprivileged children go hungry than accept federal funding for food programs. They believe children should be discouraged and destroyed if they question the status quo being erected by this disturbing group of politicians — ones who appear to believe the road to hell is paved with open minds.

All over the nation we’re seeing book bans targeting (almost exclusively) LGBTQ+ writers and/or content. We’re seeing expansions of existing obscenity laws to cover artistic performances by and for LGBTQ+ people.

And now, in Massachusetts, we’re seeing something we haven’t seen elsewhere. At least not yet. But, rest assured, this definitely won’t be the last time we see something like this:

Someone called the police last Friday.

About a book.

What happened next outraged the school community and left them in disbelief.

After the complaint, Great Barrington police and the Berkshire District Attorney’s Office began investigating whether the illustrated novel, “Gender Queer” by Maia Kobabe, was inappropriate content for an eighth grade classroom at W.E.B. Du Bois Regional Middle School.

The book was made available as a resource by an English teacher.

The new thing isn’t some idiot thinking the best way to handle a complaint about a book is to call the cops. No, the new thing we (in the royal sense) definitely shouldn’t be doing is what happened during the course of this investigation that never should have been initiated in the first place.

After the call came in, Police Chief Paul Storti notified Peter Dillon, superintendent of the Berkshire Hills Regional School District, that police were investigating the complaint and referring it to the DA’s Office.

After school let out, Principal Miles Wheat escorted a plainclothed town police officer to the classroom to investigate the potential crime of “obscenity.”

The search failed to turn up the supposedly “obscene” book. The officer (who has not been identified) left empty-handed. Later that same day, the district attorney’s office told the school the investigation was closed and that any questions about whether the book was appropriate for eighth graders was something the school itself needed to address, which is what should have happened in the first place.

When the Great Barrington PD received this complaint, they should have told the caller to take it up with the school. What it definitely should not have done is open an investigation. It very fucking definitely shouldn’t have sent an officer to a classroom to search for the book.

More details continue to emerge as The Berkshire Eagle digs into this:

The plainclothed police officer who entered an eighth grade classroom to search for a book wore a body camera and recorded the incident, leading to more legal questions and concerns.

The American Civil Liberties Union and other free speech advocates say they are alarmed by the recording, as well as the entire Dec. 8 incident that took place after classes let out at W.E.B. Du Bois Regional Middle School.

They also say they cannot recall any instances of police going to a school to search for a book. Schools and libraries have internal procedures for book challenges.

As for the school district, it has issued an apology for not handling this better.

“Faced with an unprecedented police investigation of what should be a purely educational issue, we tried our best to serve the interests of students, families, teachers and staff. In hindsight, we would have approached that moment differently. We are sorry,” the letter said.

I guarantee this sort of thing won’t remain an anomaly. There are groups being formed for the sole purpose of raising challenges targeting LGBTQ+ content and creators. They’re the sort of people who complain about being “censored” when they’re kicked off social media services but are more than willing to truly censor others by getting the government involved every time they come across content they don’t like. Those who don’t lack the self-awareness to recognize this hypocrisy simply don’t care how they come across or what they do, just as long as it hurts the people they hate.

Filed Under: 1st amendment, berkshire hills regional school district, book banning, books, gender queer, great barrington, libraries, massachusetts, miles wheat, obscenity, paul storti, peter dillon, police, school libraries, schools, w.e.b. du bois regional middle school

Judge Blocks Unconstitutional Book Ban Law Passed By Arkansas’ Self-Proclaimed Free Speech Warriors

from the free-speech-doesn't-mean-the-gov't-is-free-to-tell-you-to-STFU dept

The self-proclaimed free speech warriors of the Republican party have spent much of the past half-decade trying to find some way to force social media platforms to carry their often-objectionable speech. That’s what these asshats and hypocrites consider to be the real “censorship:” the actions of private companies these same people have long stated should not be forced to offer their services to people they don’t like.

In other words, no one should be forced to bake a “gay” cake. But on the other hand, private companies should be forced to publish the speech of people they’d rather not do business with.

Between the social media laws, the anti-drag laws, and everything in between that best soaks up the floor spittle generated by of the worst of the worst of their constituents, Republicans keep writing and passing laws that openly violate the Constitution. And they just keep losing in court every time a judge has a chance to take a look at the hate-blinded op-eds these legislators are trying to pass off as legitimate acts of government work.

Here it is again: performative shitheels being told by a federal court that their new favorite law is illegal.

Arkansas is temporarily blocked from enforcing a law that would have allowed criminal charges against librarians and booksellers for providing “harmful” materials to minors, a federal judge ruled Saturday.

U.S. District Judge Timothy L. Brooks issued a preliminary injunction against the law, which also would have created a new process to challenge library materials and request that they be relocated to areas not accessible by kids. The measure, signed by Republican Gov. Sarah Huckabee Sanders earlier this year, was set to take effect Aug. 1.

That’s from the Associated Press report on the latest injunction against the latest batch of free speech violations signed into law by state officials who should at least try to employ better lawyers to give these pieces of legislative shit a better pass before slashing their Hancock across a stack of papers to the applause of onlooking mouth-breathers.

[And the Associated Press should definitely start making the effort to actually post the court orders it discusses in articles, but a public document is not a limited good that can only be referenced when discussed. If the general public has access, AP has access. And — once again — it boggles the mind that in the year 2023 there are still major news agencies that refuse to embed the documents they report on.]

THAT BEING SAID… let’s move on.

The other great thing about decisions like this one [PDF] that slap down obviously unconstitutional laws is that it appears judges are as sick of this performative bullshit as millions of Americans who actually think rights should be respected and that they should, at the very least, not be treated as (perhaps temporary) doormats just because people who are supposed to serve the greater good, along with all their constituents, have instead decided to blow money on pantomime buffoonery for the appreciation of the most dull-witted of their voting base.

It opens by explaining what the law intends to do, as well as the decades of case law it intends to upend:

Section 1 of Act 372 makes librarians and booksellers the targets of potential criminal prosecution for “[f]urnishing a harmful item to a minor.” Plaintiffs contend that if Section 1 goes into effect, public librarians and bookstore owners will face a grim choice:

Arkansas already criminalizes providing obscenity to minors. But it has long maintained a safe harbor for librarians “acting within the scope of [their] regular employment duties” if prosecuted for disseminating material “that is claimed to be obscene.” See Ark. Code Ann. § 5-68-308(c). That immunity has not been questioned since the Arkansas Supreme Court found the exemption “reasonable on its face” nearly four decades ago.

So, in an effort meant to block a very specific subset of content some parents might find objectionable for some minors, the state legislature — including the state’s governor — decided it was OK to throw out the First Amendment along with four decades of case law supporting immunity for librarians. Fuck the librarians, said Governor Sanders and the bill’s supporters, as the court notes. Something that has never been a problem for decades is suddenly a concern worth threatening librarians with jail time over. (Emphasis in the original.)

In other words, the notion that a professional librarian might actually disseminate obscene material in the course of his or her regular employment duties was inconceivable to the state’s highest court. The statutory exemption protected librarians from meritless claims. Act 372 signals a fundamental change in how librarians are treated under the law.

A government-ordained attack on public libraries is almost inconceivable. The opinion quotes founding fathers who recognized the utmost importance of having free access to publications and works of literature. Well respected philanthropists (also quoted in the opinion) have repeatedly gone on record in support of publicly-funded libraries, which democratize the spread of information — something that’s even more important now that these entities often provide free internet access to people who can’t afford or readily access this undeniable essential of everyday life.

And yet, here we are, watching (along with an incredulous federal judge) a state decide it’s fully within the rights (it doesn’t actually possess) to jail librarians just because there’s a slim possibility a minor might access content these legislators have unilaterally decided (without the benefit of ruling on the disputed content itself) is de facto obscene.

It is no stretch of the imagination to foresee that these same legislators would object heavily — even up to the point of hastily erected legislation — to any reform efforts that might strip cops, prosecutors, or even legislators themselves of long-held immunities. But these same people think it’s entirely fine to do the same thing to other public employees, just because they don’t like a very small percentage of any public library’s inventory.

And there’s no need to guess what kind of content is being singled out as potentially illegal. That’s already on the record:

Plaintiff Adam Webb, Garland County Library’s Executive Director, states that his library has already received a “blanket request” to remove books from the collection due to their content and/or viewpoint, namely, “all materials with LGBTQ characters”; and he expects to see challenges to “those same books, as well as others dealing with similar themes,” made “repeatedly under Act 372.” (Doc. 22-15, ¶ 21)

Back to the court’s ongoing rejection of this reprehensible law:

The vocation of a librarian requires a commitment to freedom of speech and the celebration of diverse viewpoints unlike that found in any other profession. The librarian curates the collection of reading materials for an entire community, and in doing so, he or she reinforces the bedrock principles on which this country was founded. According to the United States Supreme Court, “Public libraries pursue the worthy missions of facilitating learning and cultural enrichment.”

[…]

The librarian’s only enemy is the censor who judges contrary opinions to be dangerous, immoral, or wrong.

The public library of the 21st century is funded and overseen by state and local governments, with the assistance of taxpayer dollars. Nonetheless, the public library is not to be mistaken for simply an arm of the state. By virtue of its mission to provide the citizenry with access to a wide array of information, viewpoints, and content, the public library is decidedly not the state’s creature; it is the people’s.

The state argues it has a “paramount interest” in preventing minors from accessing “obscene materials.” This apparently includes parents buying allegedly “obscene” materials for minors in their own home — something that definitely appears to run contrary to the rest of the law, which says any parent or person — whether or not they have an affected minor (or indeed, even reside in the state) can initiate proceedings against library employees.

Any “person affected by . . . material” in a library’s collection may “challenge the appropriateness” of that material’s inclusion in the main collection. Id. at § 5(c)(1). Material subject to challenge is not limited to sexual content. There is no definition of “appropriateness,” so any expression of ideas deemed inappropriate by the challenger is fair game. Section 5 does not require a book challenger to be a patron of the library where the challenge is made, nor does it impose a residency requirement.

This is what the new law would force librarians to do — something the court says are credible assertions that not only support ongoing litigation, but demand the court step in and block the law:

Librarians will be disinclined to risk the criminal penalty that may follow from lending or selling an older minor a book that could be considered “harmful” to a younger minor, since the new law makes no distinctions based on age and lumps “minors” into one homogenous category…

Librarians and booksellers fear exposure under Section 1 to the risk of criminal prosecution merely by allowing anyone under the age of 18 to browse the collection.

Librarians maintain that a quantity of books in their collections very likely qualify as “harmful to [younger] minors” under the law. Even if any such book is successfully identified and relocated to the “adult” section, librarians will have to closely police the browsing habits of all minors to make sure they do not stray outside the marked “children’s” or “young adult” sections of the library—a task librarians maintain is physically impossible and antithetical to the mission and purpose of public libraries.

Librarians and booksellers anticipate they will have to remove all books that could possibly be considered harmful to the youngest minors from the shelves entirely.

The librarians are right. The state is in the wrong.

Plaintiffs have established this “realistic danger.” If libraries and bookstores continue to allow individuals under the age of 18 to enter, the only way librarians and booksellers could comply with the law would be to keep minors away from any material considered obscene as to the youngest minors—in other words, any material with any amount of sexual content. This would likely impose an unnecessary and unjustified burden on any older minor’s ability to access free library books appropriate to his or her age and reading level. It is also likely that adults browsing the shelves of bookstores and libraries with their minor children would be prohibited from accessing most reading material appropriate for an adult—because the children cannot be near the same material for fear of accessing it. The breadth of this legislation and its restrictions on constitutionally protected speech are therefore unjustified.

And boom goes the injunction as the sportscasters say. Temporary for the moment, but it’s highly unlikely there’s anything the state can say to prevent this from becoming permanent. It’s a law meant to punish librarians for content in libraries certain members of this state’s government don’t like. And, considering they’re supposed to be the adults in the room, it’s amazing they feel so comfortable slapping on ideological blinkers and wandering around like children seeking to treat long-held rights as piñatas.

Filed Under: 1st amendment, arkansas, book ban, booksellers, censorship, for the children, free speech, harmful to minors, libraries, obscenity, sarah huckabee sanders

Court Tells Florida Town That Law Forbidding Resident’s ‘Fuck Trump’ Sign Is Unconstitutional

from the fuck-your-constitutional-violations dept

Welcome to America! Fuck everything! And not in the sexual sense, as any person would immediately understand unless, of course, they just want to hit people with criminal charges for maximizing the use of limited space to criticize the government.

Local governments tend to get pretty weird about “community standards” and “protecting children,” something that can possibly be chalked up to “thinking locally” rather than recognizing the baseline set by the US Constitution and its amendments, particularly the first of those amendments.

We’ve seen dubious actions catering to each side of the political aisle. In Texas, cops decided to seize a sign critical of the Republican party from a person’s yard under the theory the picture might offend children. (That it depicted the Republican elephant slipping its trunk under the skirt of a child in response to allegations against GOP Senate candidate Roy Moore for taking sexual liberties with minors went unmentioned in the city’s response.)

On the other side, a New Jersey municipal judge decided the First Amendment didn’t protect a home owner who placed anti-Joe Biden signs and flags in her yard, including the ever-popular phrase “Fuck Biden.” The local judge arrived at this conclusion by ignoring the obvious definition of the phrase to suggest it had something to do with actually engaging in sexual congress with the sitting president, which of course might be tough to explain to children.

Fortunately, the First Amendment is getting more respect in, of all places, Punta Gorda, Florida. As reported by Eugene Volokh, a judge recently declared the city’s obscenity law — the one that led to criminal citations for “Fuck Trump,” “Fuck Policing 4 Profit,” and “Fuck Biden” signs and flags displayed by resident Andrew Sheets — unconstitutional. For these so-called crimes, Sheets was fined $2500. He sued. And he has won.

The opening of the Florida circuit court opinion [PDF] makes it clear the city (seemingly deliberately) misread the law to target protected expression. That the intention of the law is to protect children makes no difference.

The City of Punta Gorda has embarked upon the task of protecting children. The record makes clear that city adopted the ordinance in hopes of advancing that goal. Punta Gorda argues that the ordinance is limited as it only applies to signs in public places which can be seen by children. In actual fact, that is no limitation at all.

As is relevant to this case, the ordinance bans signs that depict or describe sexual activities or organs. Fuck or Cunt can be about sex or not about sex, Sheets used Fuck as an interjection. By its express terms, the ordinance does not apply to the use of Fuck as an interjection. Sheets’ items used Fuck to emphasize the passion and force of his political opinion and his use of the word had nothing to do with sex. The use of R Cunts is arguably within the express terms of the ordinance. But is similarly used as a political statement, not a reference to the sexual organ.

By applying the rules of constitutional avoidance, by its plain terms, the ordinance does not apply to Sheets’ Items as they have nothing to do with sexual activities or organs.

The court cites a couple of extremely relevant bits of Supreme Court precedent, the latter of which has received plenty of coverage here at Techdirt.

Although factually different in some respects, this case is squarely within the reasoning of Cohen v. California (Fuck the Draft jacket case) and the distinction between a criminal charge and a civil fine provides no basis to uphold the ordinance in this case.

[…]

Given the most recent cases involving First Amendment challenges (Mahanoy, “Fuck school, Fuck cheerleading” case) and (Reed, municipal sign case) there can be little question that the U.S. Supreme Court jurisprudence has moved toward more protection for speech, not less.

The city, on the other hand, offered very little in terms of Supreme Court precedent in defense of its ordinance and its actions. Instead, it offered perhaps the weakest “for the children” argument possible.

In this case Punta Gorda argues only one compelling governmental interest: protection of children, specifically, only children that can read.

That there are limited beneficiaries isn’t enough to make an attempt at speech regulation “narrowly tailored.” The court says the law is wrong in both directions.

The ordinance is under inclusive and over inclusive. The ordinance prohibits speech that the record reflects was never seen by children. Punta Gorda claims that the limitation to places where children under 17 may see the signs is a narrow limitation. It is not. Children may be present anywhere in Punta Gorda and therefore that term is no limitation at all. The ordinance does not prohibit use of verbal indecency and that is a means of communication that many more children could understand.

The Punta Gorda ordinance is overbroad as it was actually designed to cause the preemptive self-silencing of speakers whose messages are entitled to constitutional protection. See, Reno v. ACLU, 521 U.S. 844 (1997). Whether termed vague or overbroad, the ordinance fails for the same reasons as the Statute in Reno.

Good try, says the court, but the Punta Gorda ordinance has to go.

In sum, Punta Gorda’s municipal heart is in the right place but there does not appear to be a constitutionally valid way to protect children from seeing (or displaying!) political signs with the word.

That’s how the Constitution works. The way Punta Gorda imagined it worked solely for the purpose of shutting down a critic of all things government (and one imagines it was probably the criticized police that objected most given Sheets directed fucks at both Biden and Trump) is no longer an option for the city.

And there’s even better news: Punta Gorda is not going to waste any more of its residents’ money to argue against their interests. The city will not be appealing this decision. There are a few city officials who still believe this decision (and the decades of court precedent at all levels backing it) is wrong, but have decided it’s not worth an unknown amount of future expense to continue trying to punish one person for speech some city officials objected to.

Filed Under: 1st amendment, andrew sheets, florida, obscenity, obscenity laws, punta gorda

Virginia Politicians Are Suing Books They Don’t Like

from the book-burning-but-for-lawyers dept

Civil asset forfeiture has shown us the government has a weird way of instigating lawsuits. In rem forfeiture cases allow government agencies to file suits against objects, rather than the people they’ve been seized from. This leads to some very amusing case names (even if the underlying process verges on legalized theft), like South Dakota v. 15 Impounded Cats and, um… UNITED STATES of America v. AN ARTICLE of hazardous substance CONSISTING OF 50,000 cardboard BOXES more or less, each containing one pair OF CLACKER BALLS, labeled in part: (Box) “* * * Kbonger * * It’s Fun Test Your Skill It Bounces It Flips Count The Hits * * * Specialty Mfg. Co., Seattle, Wash. * *.

A state law in Virginia allows residents to sue things rather than people. That’s what a couple of ridiculous politicians (Delegate Timothy Anderson and congressional candidate Tommy Altman) have done. Their legal action targets two books — “Gender Queer” by Maia Kobabe and “A Court of Mist and Fury” by Sarah J. Mass — in hopes of securing a ruling declaring the books “legally obscene,” thereby prohibiting them from being distributed by the state’s public schools (either by instructors in classes or via school libraries).

“Gender Queer” offends these Republican politicians for reasons that can probably be inferred from the title. “A Court of Mist and Fury” is a bit trickier. For whatever reason, the pair of pols believe depictions of physical and sexual abuse are de facto obscene. And, for whatever reason, the two scored an early win in court, with a preliminary ruling stating enough evidence of potential obscenity had been alleged that the case could move forward.

Now, FIRE (Foundation for Individual Rights and Expression) has stepped in to ask the court to find the First Amendment far outweighs the overstated (and politically expedient) arguments of these two Virginia politicians.

In today’s brief, FIRE and the Woodhull Freedom Foundation argue that neither book comes close to constituting obscenity as defined for minors under longstanding state and federal precedent. The books “will not appeal to or have value to every audience,” we recognize, but the First Amendment only requires that the books have “value to an audience” — and both plainly do.

The brief [PDF] points out the best arbiters of individual taste are (duh) individuals. Long-recognized rights give parents and readers the option to read what they want. A broadly interpreted obscenity statute — especially when attached to a bizarre law that allows people to sue books — allows the government to decide what people should be allowed to read. That decision isn’t the government’s to make.

Some readers will choose not to purchase or read the books at issue in this case. Some retailers and some librarians will decline to place them on the shelves. Our Constitution reserves these choices for individuals and forbids them from the state. In our pluralist democracy, the First Amendment prescribes a remedy for audiences offended by protected speech: those who seek to avoid “bombardment of their sensibilities” may do so “simply by averting their eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). Declaring books obscene because they include discussions or depictions of sex would reprise a discredited era of censorship repudiated by decades of Supreme Court precedent.

If the court continues to entertain the bullshit arguments of easily offended politicians, it’s going to aid and abet all sorts of censorship — not just in Virginia, but anywhere else opportunists see an opportunity to use someone else’s ill-gotten courtroom gains as leverage to foist their mindset on the people they’re supposed to be serving.

Without clarity from this Court, petitioners like the politicians here may prohibit parents from deciding what their children may read. Nor is this authority limited to books. Broad authority to prohibit or criminalize the availability of materials containing references to sexual content would enable the state to incarcerate a parent who allows a teenager to view an R-rated movie or even to access the internet.

Nor would the effects of such an order be limited to this Court’s territorial jurisdiction. Instead, it would embolden and invite further calls for censorship in school districts, libraries, and bookstores across the country—not only of these books, but of any now targeted by ambitious politicians nationwide. The resulting chill will force libraries, bookstores, and publishers unable to bear the cost of litigation to choose the cheapest option: censorship. But state-enforced silence has a cost, too, and it will be borne by groups without the political power to defend speech of interest to their communities—those who most need the First Amendment and courts that will adhere to its narrow limitations.

Chilling effects can’t easily be contained. Slopes become slippery at a moment’s notice. What somehow worked in Virginia will become model legislation for would-be censors around the nation. The way to head this off is to shut down hyper-local efforts like this one with strong affirmations of constitutional rights. Hopefully, the court will come down on the right side of history when it dives deeper into the issues.

Filed Under: 1st amendment, a court of mist and fury, book burning, books, censorship, gender queer, obscenity, suing books, timothy anderson, virginia

Virginia Attorney, Congressional Hopeful File Doomed Lawsuit Against Barnes & Noble Over ‘Obscene’ Books

from the professional-moral-panicists dept

Two political figures determined to play to the base no matter what it costs them have filed lawsuits against book retailer Barnes & Noble, claiming (one specific Virginia Beach store, along with a Virginia Beach school) the company is marketing “obscene” books to kids.

It’s all incredibly stupid. Here’s Kelly Jensen with the details for Book Riot.

Last week, Virginia Beach (VA) schools voted to remove Gender Queer from shelves. It came after school board member Victoria Manning complained about it and several other books within the schools. After the initial review of the book and several others, Manning appealed the decision made to keep the book and after reconsideration, the book was pulled.

Now a Virginia lawyer is stepping in to take the decision further: he’s filing a suit against the school and against the Barnes & Noble store in Virginia Beach.

Virginia Beach attorney and State Delegate Tim Anderson, posted on Facebook that he and his client Tommy Altman–a right-wing republican running for Congress in the district housing Virginia Beach–saw the Virginia Beach Circuit Court find “probable cause that the books Gender Queer and A Court of Mist and Fury are obscene to unrestricted viewing by minors.”

Altman (the congressional hopeful) is apparently “directing” this litigation. Tim Anderson (who may have a serious conflict of interest problem given his position as a State Delegate [the state equivalent to a Congressperson]) seems more than willing to take the First Amendment for a ride through the state’s court system, apparently hoping to define “obscenity” in a way no court at any level has defined obscenity in the past.

Anderson, who should definitely know better, is presenting some standard procedural efforts as a “victory” for people like him and his client, who somehow believe they can be the final arbiters of published obscenity.

Anderson’s Facebook post prematurely declares victory.

I am pleased to announce a major legal victory.

Today, the Virginia Beach Circuit Court has found probable cause that the books Gender Queer and a Court of Mist and Fury are obscene to unrestricted viewing by minors.

My client, Tommy Altman, has now directed my office to seek a restraining order against Barnes and Noble and Virginia Beach Schools to enjoin them from selling or loaning these books to minors without parent consent.

But that’s not what the documents posted by Anderson show. Those documents [embedded below] are nothing more than the court inviting the sued parties to present their arguments against Anderson’s and Altman’s ridiculous “obscenity” accusations.

What Anderson has posted is two Orders to Show Cause. These direct the sued parties to respond within 21 days of notice. While the Orders state that the court has found “probable cause” that the books are “obscene for unrestricted viewing by minors,” this determination means very little until the court has reviewed the arguments of those being sued.

Literally anything can be called “probable cause” when it comes to court actions. That’s how prosecutors are able to get prosecutions initiated. They present one side of the case and the court determines whether those accusations — entirely divorced from any counterarguments or motions by the defense — is enough to proceed with fact-finding. That’s what is happening here and it very definitely isn’t the “victory” Anderson claims it is. Further fact finding may determine those initiating the action are full of shit. Declaring victory before the accused has even had a chance to respond is the height of disingenuousness.

As the Virginia Beach court dockets show (as of May 22, 2022 — see below), the only action happening right now has been generated by the agitators who seem to believe they’ll be able to sidestep the First Amendment to prevent a private company from offering certain books for sale. They seem to believe the same thing about the Virginia school targeted in this action, but that’s another set of standards completely — one that involves government-on-government action and is a bit more complicated than the virtually ensured loss heading their way in terms of what Barnes & Noble can stock in its stores.

The two Republican politicians are asking for a restraining order, which is the logical move to make. But most of this will remain on hold until the defendants have a chance to respond. Unless the judge is smoking the same partisan crack the plaintiffs are, the TRO requests will remain on ice until after the show cause orders are fulfilled.

It’s unclear whether this court was chosen for its unwillingness to respect the First Amendment or just because it was conveniently located. If this court rules in the plaintiffs’ favor and grants a restraining order, it will have to step over the still-cooling corpse of the First Amendment to do so. There’s nothing in these books that even approaches the standard for obscenity. And there’s a good chance these two agitators know it. Even if they lose, they win. They’ll be able to present their lawsuit dismissals as evidence the entire system is corrupt. It’s (almost) free advertising, especially when so many mainstream outlets are willing to present their allegations (while using the plaintiffs’ loaded language) without pointing out the extreme unlikelihood of their success.

Even if they win at this level, they’ll still lose. The First Amendment protects a vast amount of speech and nothing singled out by this pair of hatemongers even approaches the lowest of precedential bars erected by courts in this country.

Filed Under: 1st amendment, a court of mist and fury, book burning, books, culture war, free speech, gender queer, obscenity, tim anderson, tommy altman, virginia beach
Companies: barnes & noble

State Department Report Repeats Talking Points From Group Who Wants To Ban All Porn

from the seems-odd dept

Last week the State Department released its United States Advisory Council on Human Trafficking Annual Report 2021, and it’s… a weird document in so many ways. Anti-human trafficking policy making is one of those issues that just seems to attract some very, very bizarre people — as you might have noticed from the world of Pizzagate and Q-Anon. Human trafficking is (1) a very real problem, (2) a very serious problem, (3) just generally horrific for all the reasons you know, but (4) happens way less than most people think (especially given how much people focus on it). Obviously, continued efforts to prevent all human trafficking are important, and so I can understand why the State Department set up this advisory council. However, they seemed to staff it with a bunch of folks who have a very clear incentive to play up the issue as much bigger and more threatening than it really is.

And perhaps that explains the report’s incredibly bizarre, incorrect, and just weird thoughts on the internet and Section 230 of the Communications Decency Act. First, they have a section that looks like it was directly written by The National Center on Sexual Exploitation (NCOSE), which while you might think that’s a group with relevant expertise, is not. The group was founded in 1962 as “Morality in Media” and has spent decades trying to stop anything they deem to be smut. They only changed their name to NCOSE because it played better in the media to tie their anti-porn, anti-obscenity obsession to exploitation. They were also a major force behind FOSTA, which they always viewed as a step towards making all porn illegal.

One of the group’s big lobbying campaigns is to convince states to pass laws declaring pornography to be a “public health issue.” It’s not, of course, but this group’s entire existence doesn’t make much sense if they can’t convince more prudes that nekkid people are destroying society. Which, fine, if outlawing porn gets you off, do what you have to do, but I don’t see why the State Department needs to support that kind of nonsense. Yet, right in this report we get:

We recommend HHS, DOJ, and DHS address the gaps and issues relating to the intersection between pornography, human trafficking, and child sexual exploitation.

As of November 2020, 16 U.S. states have passed resolutions recognizing pornography as a public health issue. It is time that the federal government also take deliberate action to acknowledge the direct links between pornography and human trafficking and address it as a threat to society….

They also recommend that HHS “allocate resources to fund research on the public health harms of pornography.” They also cite the number of reports to NCMEC of suspected child sexual exploitation as proof that there’s a real problem — leaving out that (1) reports are not actual evidence of actual exploitation, (2) that social media has gotten better about reporting to NCMEC, and (3) that nuttiness like Q-Anon has resulted in tons of obviously bogus reports. But, no, they insist that such reports are proof of “a pervasive problem.”

And then there’s this:

In addition, the 94 United States Attorneys? Offices are mandated to enforce federal obscenity laws. FBI agents, postal inspectors, and customs officers are responsible for investigating violations of federal obscenity laws. Pornography is the marketing department for sex trafficking. It has been shown to influence sex buying behaviors and much of it is produced by force, fraud, and coercion.[46] A robust enforcement of federal obscenity laws will therefore reduce the demand driving sex trafficking and protect those that are being victimized in the production of pornography. Therefore, we call upon federal law enforcement agencies to investigate and DOJ to prosecute federal obscenity laws actively, aggressively, and to the fullest extent of the law…

The claim that porn is “the marketing department for sex trafficking” seemed weird. It would be extreme already in just an NCOSE press release. It seems wholly irresponsible to put it into a State Dept. document. Meanwhile, I was wondering what the footnote was as evidence for this statement… and it’s citing a Jezebel article from 2018 about two porn actors (understandably!) complaining about abuse, violence, and boundary violations on set. That’s absolutely awful, but says nothing at all about how widespread this is and what any of that has to do with trafficking.

Then, the report suggests that Congress needs to update Section 230. Now, some of you might recall that we already did this. Congress — at NCOSE’s urging — passed FOSTA specifically to try to carve out sex trafficking activity from Section 230 protections. And so far, what it has done is made it significantly more difficult to find and capture actual sex traffickers while also putting the lives of sex workers at risk — often leading them to take risks that made it easier for traffickers to take advantage of them.

All in all, the evidence has shown that FOSTA has done the exact opposite of what was promised and has actually make sex trafficking worse.

But this advisory ignores all that and says we just need to take an even bigger sledge hammer to Section 230:

Sex trafficking of children and adults has proliferated online in part because Section 230 of the Communications Decency Act of 1996 (CDA) has been interpreted by federal and state courts to: 1) prohibit sex trafficking victims from suing websites that advertise them as being for sale; and 2) prevent states from enforcing criminal laws against websites that carry ads for sex trafficking. The technology industry has effectively used Section 230 to avoid responsibility for and profit from illegal activities that continue unabated on their platforms.* Despite the passage of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 tech-savvy internet traffickers have already leapt ahead using various ploys including utilizing foreign-based corporations and servers, which operate outside the reach of U.S. law, to advertise, exploit, and traffic American children on American soil.

Federal enforcement alone has proven insufficient in combating the growth of online commercial sexual exploitation of children. State, territorial, tribal, and local law enforcement must have the necessary digital forensics tools and clear authority to investigate and prosecute those who profit from these crimes. Additionally, removing civil immunity for companies that are complicit in child sexual exploitation on their platforms will create a necessary incentive for the technology industry to become proactive in protecting the most vulnerable in our society.

Therefore, we recommend Congress amend Section 230 of the CDA to empower victims and their attorneys, and states, territories, tribes, and localities to use all applicable criminal and civil laws to effectively combat human trafficking, including the commercial sexual exploitation of children online.

Except that as it stands right now, Section 230 already allows most of this. It has no impact on federal criminal law, and since the passing of FOSTA does allow for both civil and state criminal lawsuits. And so far, those have been a disaster. Ambulance chasing lawyers going after Mailchimp for cash, because some company that wanted to become the next Backpage signed up to use Mailchimp to send out emails.

All of the “sources” in the 3 paragraphs above… point to NCOSE’s site, which again, is not a trustworthy or honest party in all of this.

I’m used to seeing this kind of nonsense from NCOSE all the time, but why is the State Department allowing its name and credibility to be used to launder this nonsense as if it’s legit?

Filed Under: 1st amendment, human trafficking, obscenity, porn, section 230, sex trafficking, state department, trafficking

Judge Ignores First Amendment, Misreads Town Law, While Ordering Resident To Remove 'Fuck Biden' Signs

from the I-guess-we're-extending-ignorance-of-the-law-privileges-to-judges-now dept

A municipal court judge in New Jersey who apparently doesn’t understand either the First Amendment or local ordinances has just ordered a resident to take down some f-bomb-laden signs from her yard. (h/t Peter Bonilla)

A municipal judge on Thursday ruled that a Roselle Park homeowner’s owner’s anti- President Biden flags including the F-bomb on her fence were obscene and must be removed because they violated a borough ordinance.

Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine. Patricia Dilascio is the property owner but her daughter, Andrea Dick, had the signs, three of which include the F-word, on display.

The signs, which can be seen in this photo, are certainly colorful in terms of language, and very definitely convey their owner’s displeasure with the current regime. However, it would appear they do not violate the ordinance cited by the judge, who also claimed to be all for protecting free speech rights while issuing an order that violates those rights. According to Judge Gary Bundy, free speech is not “absolute” and the town’s law does not “abridge or violate” the First Amendment rights of the signs’ owner.

It is clear from state law and statutes that we cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.

Well, that’s true, but only if you insist on limiting your analysis to superlatives, as this judge did. The town’s law does not abridge the property owner’s First Amendment rights. But this application of the law certainly seems to. The phrase “Fuck Biden” — which appears on three different signs — doesn’t actually violate the ordinance the town of Roselle Park claims was violated. The law forbids the public display of “obscene material.” Here’s the law’s definition of that term:

The word “obscene” shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole:

a. Appeals to the prurient interest;

b. Depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and

c. Lacks serious literary, artistic, political or scientific value.

Given the “and” between b. and c. and the phrase “when considered as a whole,” these signs would need to violate all three clauses to be considered obscene. “Fuck Biden” seems pretty clearly “political,” even if the value of the sentiment is somewhat debatable. But there’s nothing sexual or prurient about this use of the word “fuck,” which would be taken by literally nobody to mean the property owner is suggesting someone should engage in a sexual act with the current President.

We certainly don’t expect municipal courts to be run by Constitutional scholars or attorneys with years of experience defending civil rights, but we should expect appointed judges to at least keep up with the last 50 years of Supreme Court precedent (including some recent decisions) determining that the word “fuck” — especially when used in conjunction with political issues — is definitely protected speech.

But even the town’s mayor seems to believe residents’ rights end when public officials begin to get offended on behalf of rhetorical minors.

“Today was a win for the borough and decency,” Signorello, the mayor, said in a statement to NJ Advance Media. “While we respect the views of our residents, there’s no place for profanity by a school and school children.”

It was neither, Mayor Signorello. It was a win for people who still think the word “fuck” has the innate power to tear apart the fabric of society. It was a win for people that think the only speech that should be protected is speech they like or agree with.

The judge is no better.

The judge, while handing down his ruling and sentencing, rhetorically asked if a balance could be found between the homeowner’s freedom of speech and a mother having to explain what the f-word means to their child.

“It’s a swear word” would be all the explanation most kids need. And most kids won’t need an explanation because they’re already familiar with the list of words not used in polite society. Judge Bundy seems to believe he’s presiding over a Mayberry-esque community that still has milkmen and separate beds for husbands and wives, rather than a 2021 New Jersey town that’s located in a state best known for mob violence, corrupt politicians, and residents considered only slightly less terrible than Philadelphians.

This is a dumb decision and it’s supported by people saying even dumber things than the judge who blew this Constitutional call. The decision can be appealed and definitely should be. The ordinance doesn’t say what the judge says it does, and the First Amendment still says what it has always said. For the moment, the signs remain up, which presumably means the imaginary uncomfortable family discussions of f-bombs will have to continue until this issue is finally resolved.

Filed Under: 1st amendment, free speech, new jersey, obscenity, political speech, roselle park

Four Congressional Reps Ask Bill Barr To Restart His War On Porn

from the we-got-tired-of-dealing-with-issues-our-constituents-want-us-to-deal-with dept

A handful of Congress members seem to think we need a War on Porn to go with our War on Drugs and our War on Terror. They think they have the right person in the DOJ to get this war machine mobilized.

Yes, it’s Bill Barr. The same man who decided the DOJ should start pushing obscenity prosecutions back in 1992 when he was Attorney General is being petitioned by a moral minority in the House to Make America Unconstitutional Again.

The letter, signed by Reps Jim Banks, Mark Meadows, Vicky Hartzler, and Brian Babin, asks Bill Barr to turn the DOJ into an anti-porn organization again. A statement accompanying this attempted First Amendment broadside was sent to the National Review by Rep. Banks. It includes two links to Fight The New Drug — the group of non-medical/psychological experts behind the push to label porn a “public health crisis” — and one to the UK’s infamous Daily Mail, to give you some idea what sources these reps consider credible.

As online obscenity and pornography consumption have increased, so too has violence towards women. Overall volume of human trafficking has increased and is now the third-largest criminal enterprise in the world. Child pornography is on the rise as one of the fastest-growing online businesses with an annual revenue over $3 billion. The United States has nearly 50% of all commercialized child pornography websites. Pornography is ubiquitous in our culture and our children are being exposed at younger ages. Nine in every ten boys under the age of 18 have seen porn. Children are struggling with pornography addiction.

The letter [PDF] reminds Bill Barr of his anti-porn roots and suggests he all but killed the industry nearly 30 years ago before the next administration decided fighting CHILD porn might be a better use of the DOJ’s resources.

There’s a moral panic to be had here. Not a new one, mind you. This moral panic has resulted in multiple states buying what these moralists-posing-as-researchers are selling, as well as the UK’s multiple failed attempts to mandate some sort of porn filtration system for the nation.

It begins with some dubious claims and gets stupider from there:

The Internet and other evolving technologies are fueling the explosion of obscene pornography by making it more accessible and visceral. This explosion in pornography coincides with an increase in violence towards women and an increase in the volume of human trafficking as well as child pornography. Victims are not limited to those directly exploited, however, and include society writ large. This phenomenon is especially harmful to youth, who are being exposed to obscene pornography at exponentially younger ages.

There has been no increase in violence against women. The number of reported rapes has been declining for four decades straight. So have other forms of violence, including intimate partner homicide. Correlation is not causation, as we all know, but attempting to correlate the increasing accessibility of porn with an “increase in violence” that doesn’t actually exist is a whole new level of intellectual dishonesty. The rest of the paragraph is deliberately vague, invoking some sort of existential threat the actual facts don’t back up. And sooner or later, someone’s going to need to be writing angry letters to the DOJ because fetuses are being exposed to porn, if the “exponentially younger ages” trend continues.

More honestly, this Gang of Four reminds AG Barr that none other than the President himself promised to wipe out porn. The “Children’s Internet Safety Policy” was signed by Trump in 2016, a few months before he was elected. It was crafted by Enough Is Enough, a non-profit warmly regarded by Fight The New Drug. The “pledge” included footnotes that complete the circular reasoning loop, citing the number of “public health crisis” declarations by state legislatures that groups like Enough Is Enough and Fight The New Drug pushed for and co-wrote as evidence of porn’s ability to upset the public health apple cart.

It’s all very stupid and the worst kind of virtue signalling. Unfortunately, it’s also likely to grab Barr’s attention. It’s not even subtle about its intentions to give Barr something he would love to run with because it’s just the sort of thing Barr would love to run with. It opens with “we write to you out of concern for the rule of law,” for fuck’s sake, which is Barr’s thing. No one loves the “rule of law” more than this blue-backing, encryption-threatening, civilian-bullying loudmouth, so this is basically saying the things he’s probably already thinking.

AG Barr has never been too concerned about what the Constitution says his agency can and can’t do. The First Amendment implications of running with this half-assed idea will be shrugged off as well. If Barr wants a war, he can have one. It just won’t be the war he expects.

Filed Under: 1st amendment, bill barr, brian babin, doj, jim banks, mark meadows, obscenity, porn, vicky hartzler, william barr