this post was submitted on 11 Aug 2023
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There is no absolute right to free speech as has been ruled again and again and again. Restricting access to pornography to adults is one of the areas that has been ruled as an allowable restriction, or more accurately there are laws against providing children with pornography, just like there are laws restricting access to alcohol and tobacco. The interesting argument in this case is, can the state require a specific mechanism of restriction be employed. Looked at another way, would the case hold up if instead of porn we were talking about alcohol? If Texas required a site selling wine for instance to maintain a database of customers state IDs would that be legal? I suspect the answer would be yes, but it's debatable, so it's risky to bring a lawsuit with that as its sole basis.
The warning on the other hand, that's a MUCH stronger argument. More so even than censoring speech, compelling speech is looked down on far more severely. The law is asserting as facts, things that at best are debatable, and at worst are just downright lies, and forcing sites to repeat those dubious "facts" is really not going to go over well. They are so bad in fact as to verge in libel. Focusing on the warning label is a pretty easy slam dunk in their case, while going after the ID portion is much more iffy. I don't think they'll be successful in getting the law overturned on the basis of the ID collection, but I do think they'll succeed on the basis of the required warning label.
Government has curtailed free speech only when the burden is justified by it's benefit. Here they're saying it fails, not because they're prescribing a specific method but because it's curtailing free speech beyond what is beneficial to the payout. It's high burden, but low effectiveness in its states goal. Hence why they're saying it's being used to curtail speech they simply don't like.
Edit: and no, a database being kept fails scrutiny as it doesn't serve the stated benefit.
Hmm, it's an interesting argument and it might work, but I still think it's a far weaker argument than the one against the warning label. In either case this will be an interesting one to watch and I suspect because of the multiple issues with the law PornHub will ultimately prevail. Maybe not in the initial case, but certainly on appeal.