Hey Ricky Schroder: Porn Is Protected By The 1st Amendment
Do you all remember Ricky Schroder? He is a former child actor who became prominent thanks to TV series like Silver Spoonsand NYPD Blue. While I could reminisce about old TV for hours, it is worth noting that Ricky Schroder has become a darling for the far-right. You might remember himfrom his greatest hits of yelling at a Costco worker in Los Angelesfor refusing him access to the store in 2021 for not wearing a facemask, per the local mask requirements created to protect against the spread of COVID-19. In recent months, Schroder entered right-wing political advocacy and lobbying by establishing the so-called Council on Pornography Reform.' Conservative news outlet The Western Journalwas the most recent media to cover Schroder's work to protect the kids" and push legal textualism.
Without really noticing at the time (my bad), the Council on Pornography Reform and a coalition of other terrible far-right and anti-pornography groups filed an amicus brief with the Fifth Circuit Court of Appeals at the end of September. Currently, adult industry companies and the industry's advocacy organization, the Free Speech Coalition, are fighting an appeal brought by the state of Texas dealing with the state's age verification and porn labeling law, House Bill (HB) 1181. The plaintiffs, made up of the parent companies of the largest pornography brands in the world, were able to convince Senior U.S. District Judge David Alan Ezra of the Western District of Texas to block HB 1181 before it entered into force on September 1. Mike Masnick, Ari Cohn, Corbin K. Barthold, others, and myselfhave written for Techdirt and other outlets (Cohn's column on the Ezra ruling at The Daily Beast), all commenting that Judge Ezra's decision that corresponds to existing case law and the intent of Justice William J. Brennan Jr.'s interpretation of the First Amendmentto cover a broad freedom of expression."Pornography is included. However, the Fifth Circuit, the appeals court equivalent of the short bus, issued an administrative stay on the preliminary injunction Ezra produced, allowing House Bill 1181 to be enforced while litigation plays out. The administrative stay was granted after then-acting Texas Attorney General Angela Colmenero appealed the Fifth Circuit to hear arguments about overturning the Ezra injunction.
The appeal was granted, and oral arguments were heard on October 4. A decision from the court has yet to be handed down. According to PACER, two amicus briefs were filed. The brief I first noticed was, naturally, the amicus submitted by famed First Amendment counsel Robert Corn-Revereon behalf of the American Civil Liberties Union, TechFreedom, Electronic Frontier Foundation, Foundation for Individual Rights & Expression, Center for Democracy & Technology, and Media Coalition Foundation. These groups urged the three-judge panel to uphold the lower court's injunction and to affirm that House Bill 1181 violates the First Amendment of adult entertainment websites and adult users of these sites logging on from Texas IP addresses. But the second amicus briefwas filed by counsel representing Schroder's group, the Council on Pornography Reform, and a slate of other far-right astroturfing groups. These groups include Michael Flynn's America's Future, the Public Advocate of the United States, and a few conservative textualist groups with terrible or no websites. Note that Public Advocate, founded by Eugene Delgaudio, has been classified as a hate group by the nonprofit Southern Poverty Law Center for general and anti-LGBTQ+ hate.
The Western Journal reported on October 16that the amicus brief is a step to protect children" from pornography and what these groups view as obscene. Central to their argument is saying that the U.S. Constitution, let alone the First Amendment, only protects political speech." This is an obnoxious argument used by conservatives for decades to try and limit interpretations of the First Amendment to cover forms of expression that are literally outlined in the amendment and do not protect what they would argue are implied rights of expression. To wit, the amicus brief refers to Justice Brennan's definition of freedom of expression" as devoid of meaning." They also apply an antiquated definition of obscenity that predates the Miller test to guide the analysis of the Fifth Circuit. Counsel for the anti-porn groups literally makes up terms to refer to utilizing a less-nuanced textualist review of the law. The call for the Fifth Circuit to overturn Ezra's ruling and apply a so-called textually faithful" analysis of the law. But what's more disconcerting is a reliance on case law and previous decisions affirming a right to expression, implied or not, as a protected element of the First Amendment. As long as no law has been broken, the standard for classifying something as illegal or even obscene" is entirely subjective. Obscenity case law is by no means simple or consistent. Nevertheless, U.S. courts in recent decades have decided that obscenity applies primarily to content that is classified as child sexual abuse material, other types of content depicting the exploitation of real-life human children, non-consensual intimate images (NCII; also known as revenge porn'), and other depictions of sexual violence and exploitation.
The Miller test is the standard used in most obscenity cases, in part, because it requires a judge or jury to determine whether specific material meets the threshold of being obscene. Obscenity is in the eye of the beholder. Since First Amendment concerns for the vast majority of people often do supersede the concerns of a tiny minority, obscenity in any interpretation of the First Amendment has to be legitimately illegal, heinous content. Why do you think the obscenity provisions built into laws like the Communications Decency Act, the Child Online Protection Act, and the Child Pornography Prevention Act were all struck down by the Supreme Court for First Amendment violations? These statutes infringed on the First Amendment rights of the vast majority of users of the internet. At that, it is worth reminding you all that the court found that CPPA was broadly violating the First Amendment rights of adult performers and producers who create virtual taboo and fetish material. The Supreme Court in Ashcroft v. Free Speech Coalition affirmed this view.
Beyond the obvious ideological undertones of the anti-pornography groups (they reference the Holy Bible in the amicus brief), it shows a willful ignorance of First Amendment case law that anyone-an 8th-grade civics student, a first-year law student, a doctor, a bus driver-could beat in a court of law. You'd hope that an actor who once played a cop on TV could figure that out. I implore the Fifth Circuit Court of Appeals to not fall for these flawed arguments.
Michael McGrady covers the tech side of the online porn business, among other things. He is the contributing editor for politics and legal at AVN.com.