Free Porn Online... and the First Amendment

Curmie has decided not to write about Donald Trump or Elon Musk (has there ever been a better name for a Bond villain?) except in passing.  He’ll still post articles, memes, and cartoons on his Facebook and Bluesky pages, but he’s going to protect his mental health by not bothering to spend 1000 or 1500 words arguing that this or that action by those two sociopaths is illegal, mendacious, hypocritical, moronic, xenophobic, plutocratic, or intentionally cruel.  It would be newsworthy if either of them ever did anything that didn’t fall into at least a couple of those categories.  So Curmie is going to write about other things.

So, here we go…

Thirty-something years ago, when Curmie was new to the PhD program at the University of Kansas, his mentor, the inimitable Ron Willis, urged him to find something outside the theatre program to keep him from living in the theatre building or the library.  Ron suggested Audio Reader, a service providing access to written material for the visually impaired.

Curmie thought that such a volunteer gig might make sense, and arranged for an audition, which included reading aloud from a variety of sources.  The only specific I remember was that there was an article about the Kansas City Royals; Curmie remembers smiling at the fact that he was enough of a baseball fan to know how to pronounce the name of one of the Royals’ starting pitchers, Mark Gubicza.

Anyway, I got the gig, and began a weekly stint recording a section of the Kansas City Star.  My schedule varied from semester to semester; at one time or another I read from the front page (all stories that started there), nation & world (everything from the news section that didn’t start on the front page), and columns & editorials.  I filled in once or twice on sports when the regular person was ill or out of town.  There were enough volunteers that we had the entire Star, even the classified ads (!), uploaded to the system by 9 a.m. every day.

I’d been at Audio Reader for a few months when I got a call from the volunteer coordinator.  She seemed hesitant, but asked me if I meant it when I said on my audition form that I’d read anything.  I said I did.  So… one of the guys who’d been doing the Adult Magazine Hour had taken a job out of town, so they needed to find someone else to do a monthly hour-long show, reading from Penthouse.  See, someone did care about the articles!

I was pleased to find out that although I was expected to describe all the photographs that accompanied news stories in the Star, I needn’t do that with Penthouse.  Oh, and I should use an alias.   I was also lucky that the other guy reading Penthouse really liked the smuttier stuff, so I could concentrate (mostly) on articles, which really did include the occasional good piece of investigative reporting. 

But the once-a-month thing was based on there being four weekends a month, and sometimes there were five.  There is only so much material that can be coaxed from an issue of Penthouse or Playboy (there were two “women’s magazines” in the rotation, as well).  That meant I got a second show some months.  Audio Reader had subscriptions to the mags we read every month, but the poor volunteer coordinator had to visit the local porno emporium, hold her nose, and purchase… well, something those months.

I used to joke that one does not truly appreciate the literary merit of Penthouse until one has to read aloud for 56-58 minutes from a magazine called (and I’m not making this up) Wet or Butts and Boobs Monthly.

Another year or two later, Curmie gave a conference paper on the press coverage of the Communications Decency Act, which was intended to keep pornographic materials out of the hands of kids.  Despite broad-based and bipartisan support in Congress and from then-President Clinton, the CDA was struck down by a unanimous Supreme Court, who ruled in Reno v. ACLU that it was an unconstitutional abridgement of First Amendment rights.

Of course, in those days the allure of online porn was limited by the available technology.  Most people’s internet access was through dial-up, and it would take a couple of minutes to see a still photograph.  Now, you can access an hour-long video in an instant.  So shutting off hard copies of magazines doesn’t solve the problem of allowing access to minors, many of whom have better technical skills than you or I, Gentle Reader.  Demand has changed significantly. Unsurprisingly, companies like PornHub are now worth well into ten figures, whereas Curmie had to check to see if Penthouse still exists.  (It does.)

So we jump forward a couple of decades from when Curmie moved to Texas and therefore stopped volunteering with Audio Reader (he still sends a little money their way).  Curmie became dimly aware that in June of 2023 Texas Governor Greg Abbott signed House Bill 1181, which required pornsites to “use reasonable age verification methods” to “verify that an individual attempting to access the material is 18 years of age or older.”  The law also required websites to “display health warnings about the effects of the consumption of pornography.”

Aylo, the parent company of Pornhub, YouPorn and Brazzers, did not comply, and they were sued by Abbott’s minion accused felon Attorney General Ken Paxton.  And then there was a counter-suit, claiming violation of First Amendment rights.  Lather, rinse, repeat.  The Fifth Circuit, which is generally roughly as civil libertarian as the KGB, voted 2-1 to uphold the age identification requirement but to scuttle the health warning.

Aylo appealed to the Supreme Court while blocking access to its sites in Texas.  Instead, users saw a message stating that the company would comply with the law, but arguing:

Attempting to mandate age verification without any means to enforce at scale gives platforms the choice to comply or not, leaving hundreds of thousands of websites open and accessible. As we’ve seen in other states, such bills have failed to protect minors, by driving users from those few websites which comply, to the hundreds of thousands of websites with far fewer safety measures in place, which do not comply.

Curmie, being Curmie, wondered whether this argument holds up, decided to test it.  It took him less than a minute to find a site with apparently thousands of videos, live feeds, “chat rooms,” etc., readily accessible from Chez Curmie in Texas.  And if Curmie can do that, you can bet the ranch that pervy high school sophomore can do so, as well.  It does indeed appear that sites willing to obey the law are being punished relative to those that flout it.  The question of selective (or, at best, random) enforcement is real.

That still doesn’t solve the problem, of course.  Curmie won’t claim to understand the various means of age verification and their relative effectiveness or intrusiveness.  What doesn’t seem to be in question, at least ostensibly, is that some sort of gatekeeping would be a good idea.  So we’re really talking about technical details, not philosophies.  (Curmie does note the distinct possibility that Abbott and his ilk would very much like to shut down access to adults as well as to minors, but of course none of these folks would actually admit that this legislation is intended to be the thin edge of the wedge.)  There’s a good overview of the various to-ings and fro-ings by Marc Novicoff of The Atlantic here.

Anyway, Curmie, not being a devotee of PornHub’s services, confesses he’d pretty much forgotten about the whole business until a couple of weeks ago when Justice Alito made headlines by inquiring, obviously mockingly, if PornHub is “like the old Playboy magazine, you have essays there by the modern day equivalent of Gore Vidal and William F. Buckley Jr.?” 

A handful of left-leaning sites tried to suggest that the question shows the 74-year-old Alito to be out of touch with reality.  Curmie is no fan of Alito, whom he suspects may well be past his sell-by date, but this question was indeed directly on point, because he knew the answer.  Some of those mags from yesteryear did indeed have things to offer other than photos of attractive young women in various states of undress.  Lawyers for Aylo had to admit that, no, there’s nothing equivalent on their site.

So where does all this leave us?  Well, FIRE, the best-known of the free speech advocacy organizations, has been all over this case since SCOTUS agreed to hear it.  The entire post is worth reading, but here’s a brief sample:

The problem with age-verification laws is they place a burden on every consumer — adults included — to access constitutionally protected speech. And verifying your age online is a different animal from simply flashing a driver’s license to someone behind a counter. It usually means handing over your government ID for a platform or verification service to copy, entering the last four digits of your Social Security number, or even submitting to biometric facial scanning…. 

[The Fifth Circuit decision] ”ignores the district court’s finding that the Texas law is “unreasonably intrusive in its use of age verification” because, according to Texas’ own expert, there were “several ways that age-verification can be less restrictive and costly” than the Texas law requires….

Most recently, in Free Speech Coalition v. Rokita (2024), an Indiana district court… explained that strict scrutiny must apply to the age-verification law because, for example, Indiana’s law (like the Texas law) applies to websites that have 33.4% or more sexual content. In other words, age verification would apply even to “adults attempting to access material perfectly appropriate for minors” and “even when the majority of a website contains entirely acceptable, and constitutionally protected, material....

The hope, of course, is that the Court — unlike the Fifth Circuit — follows its internet speech precedents safeguarding adult free speech rights.

Still, the prediction is that this particular SCOTUS is likely to uphold the Texas law and extend (or at least allow the extension of) similar restrictions elsewhere.  Caught up in the legalese, the technical arguments, and the legitimate and appropriate desire to keep obscene content out of the hands of minors are two simple questions: does the Texas law do what its supporters say it does, and does it do so in the least intrusive manner possible?

The answer to both of these questions is an incontrovertible “no.”  QED.

A Few Thoughts on Garland v. Cargill

The recent SCOTUS decision, along partisan lines, in Garland v. Cargill was both predictable and legally correct.  The ruling is based on the language of the 1934 National Firearms Act, which, in outlawing private ownership of machine guns, defined such a gun as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

At issue was an initiative by the ATF to ban bump stocks in the aftermath of that asshole in Las Vegas killing 60 country music fans and wounding over 200 others in 2017 by employing the device.  Bump stocks don’t, technically, transform a semi-automatic weapon into a “machine gun” according to the specific definition of that law; they merely create fundamentally the same effect.  In other words, this case was a showdown between ontology and phenomenology or, less pretentiously, between literality and functionality.

It is not surprising that the trio of liberals on the Court argued for more restrictions on weaponry and the sextet of conservatives thought otherwise.  But it may be that those political perspectives weren’t really at the center of the justices’ respective votes.  Giving them the benefit of the doubt, we could reasonably argue that the majority simply looked at the definition of “machine gun” in the law, and the minority chose to rely on the way the term is used in common parlance.  (Both sides, of course, are slaves to semantics when it suits them, and to mind-reading when literality doesn’t achieve their desired goals.)

Bump stocks weren’t invented until the 2000s and therefore could not have been explicitly included in a law written nearly three generations earlier, but it’s reasonable to view the inclusion of bump stocks as a logical extension of that law’s intent.  Bump stocks do indeed create the effect of an automatic weapon, even though the way they achieve that end is not exactly what the 1934 law describes.  Justice Sotomayor’s dissent even invokes a familiar aphorism: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”

Side note: it was almost exactly three years ago when Curmie wrote about a SCOTUS case in which the fact that a law specified a definition of a term thereby made the conventional meaning of a term irrelevant.  Part of that ruling was, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.”  So, the majority is correct in legal terms… and that’s what matters.

Let me also say that headlines like the one used by the  Fox affiliate (!) in Spokane, “The gun technology used in the 2017 Las Vegas shooting was just okayed by the Supreme Court,” are technically accurate but clearly misleading, intended to titillate rather than inform.

SCOTUS didn’t say that bump stocks ought to be permissible; they determined, rather, that they were not banned by existing law, and therefore that ATF overstepped their authority.  Justice Alito makes this clear in his concurrence:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning.  That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).  But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns.  Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.  Now that the situation is clear, Congress can act.

Curmie notes in particular two things about what isn’t said: first, most (not all) of the news coverage of the ruling omits the fact that the ATF that sought to ban bump stocks was part of the Trump administration.  Presumably, then, the Grand Wizard of the GOP approves of the ban, or at least did nothing to stop it under his regime.  The chances his minions would let a redefinition of “machine gun” make it to the floor of either house of Congress in this election year: zero.

More importantly, take a good look at what Alito says above, Gentle Reader.  He argues that ATF exceeded its authority by, in effect, attempting to enforce a law that doesn’t exist.  But he also suggests that Congress not only could, but “need to” amend the law to include bump stocks.  That’s about as close as a conservative jurist is ever going to come to endorsing anything in the same universe as gun control.

What’s really significant, though, is that nowhere in Justice Thomas’s rambling majority opinion (did he get his degree in the Department of Redundancy Department, or what?) or in Alito’s more succinct and cogent concurrence is there any indication that there would be anything constitutionally problematic about a law that did explicitly outlaw bump stocks. 

This relates to an argument that Curmie has made several times, most comprehensively and explicitly here, that we already have limitations on private ownership of certain kinds of weapons, including, for example, nuclear submarines, surface-to-air missiles… and automatic rifles. 

So we’re left with two points.  First, that not banning weapons systems that perform the same function as what were described as “machine guns” in 1934 makes no logical sense, and failure to do so can only be ascribed as capitulation to the gun lobby at the expense of the populace.  But we all know that, just as we all know that such legislation won’t happen until the GOP starts caring more about constituents than about their campaign contributors, or until the Dems have control of the White House, a clear majority in the House, and the ability to enforce cloture in the Senate.  Not in the foreseeable future, in other words.

Second, that adjusting an existing line that separates the legal from the illegal is a fundamentally different thing than creating a line that was hitherto non-existent.  In other words, discussions about also limiting or denying access to semi-automatic weapons are absolutely legitimate, and should not be derailed simply by a blinkered interpretation of what is and is not constitutional. 

What, other than adherence to a reading of the 2nd amendment that casually ignores the phrase “well-regulated militia,” is the argument in favor of allowing these weapons to be available to the likes of Adam Lanza, Nikolas Cruz, or Stephen Paddock?  Somehow I suspect I’ll never be satisfied with the answer to that question.

It Was a Bad Week for the 4th Amendment

On Saturday, I wrote about an astounding case in the Indiana Supreme Court, in which the majority found that, 796 years of legal precedent notwithstanding, citizens do not have right to resist even an unlawful entry into their homes by police.

Not to be outdone in authoritarianism, the US Supreme Court on Monday issued its own mind-boggling decision to move us one step closer to a police state. While their ruling was not as transcendently stupid as the one in Indiana, it did have the advantage of having an 8-1 supermajority. No wimpy-assed little 3-2 margin here, no siree Bob.

Can we take as a starting place that if you’re seriously asserting that the Supreme Court of Kentucky sided too much with the civil libertarians, you’ve got a pretty damned reactionary SCOTUS? But that’s exactly what happened in Kentucky v. King, in which the nation’s highest court ruled overwhelmingly that a warrantless search can be justified by smelling marijuana and hearing unspecified noises which might be interpreted to suggest the destruction of evidence, even in the obvious absence of any attempt to do that.

Lexington police pursued a suspected drug dealer into a hallway in an apartment building. Faced with two possible doors through which the suspect might have exited, they smelled what they thought was marijuana smoke coming through one door, banged on the door, announced their presence, heard whatever they heard, kicked the door in, and found three people, one of whom was in fact smoking marijuana, plus “marijuana and powder cocaine in plain view.” By the way, the suspect wasn’t there.

The details are significant: for the initial search to be legal without a warrant: 1). the police must had a legitimate reason to believe the people in the apartment were doing something illegal, 2). they must have had cause to believe that evidence was about to be destroyed (not merely hidden--see below), 3). they must not have created that exigency themselves, 4). and it must have been impractical to secure the premises and get a warrant. For the subsequent search to have been legal in the absence of a warrant, there must have been other evidence already in plain sight.

Of those four criteria necessary to legitimize the arrest of the people in the apartment, then, (remember, all of which must be met in order for the search to be legal), I’ll give them maybe one and a half. That this is nonetheless enough for an authoritarian idiot like Samuel Alito does not shock me. That it’s enough for Elena Kagan is a little more troubling.

About the best the majority can offer is that there was the smell of marijuana, after all. True, I doubt that any of the cops in question could differentiate between the odor of marijuana and that of, say, the herbal cigarettes sometimes used in theatre productions to approximate dope-smoking, but I’ll give them that one. Is that enough to kick down a door without a warrant? For the Stasi, sure. For the Lexington Police, not so much.

Because, after all, we’re supposedly a nation of laws: so when policemen “[bang]” on your door “as loud as [they] could,” they are not “demanding” entry, because that, you see, would be illegal without a warrant, and our fine men in blue wouldn’t do that. No, pounding on a door screaming “This is the police” or “Police, Police, Police!” is little more than a polite request for conversation, tantamount to wanting to borrow a cup of sugar or wondering if the apartment's residents thought the Bengals were going to suck again this year. Notice that the cops can’t remember exactly what they said, but they remember that it was loud (because it has to be to fulfill one set of guidelines), and they definitely didn’t, for example, use the words “Open up,” because that would be unconstitutional. Uh huh.

The response to this conversation-opener was apparently “people inside moving.” OMG, NO! They might, of course, been moving toward the door to open it. They might have been walking away, since Justice Alito makes a big deal out of their right to do so:

… even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

They will let just about anybody be on the Supreme Court, won’t they? The one thing we can pretty much conclude didn’t happen was an attempt to destroy evidence. How do we know? Because all the evidence remained in plain sight. The people in the apartment would have had to have been even more incompetent than the police to have that theory fit the evidence.

Here’s the necessary time-line: the suspected dealer (remember him?) runs down the hallway and presumably enters the apartment across the hall, quite possibly slamming the door behind him. The police follow, probably not silently. Deciding to follow the wisdom of the great criminologist Toucan Sam and follow their nose, the police pounded on the apartment door, announced their identity, heard noises, decided what those noises were, “explained” (love that word choice) their intention to enter the apartment, and kicked the door in. During this time, all three people in the apartment remained in the front room, the marijuana and cocaine stayed in plain sight, and the “guest” didn’t even bother to put out his doobie. Interestingly enough, while I find this the most compelling argument to believe that the cops did some ex post facto consultation about what might conceivably get them a conviction, the Kentucky Supreme Court didn’t wish to pursue the matter, allowing the exigency argument to be assumed for the sake of argument, thereby allowing the US court to do so, as well.

The Kentucky court centered its argument that the search was illegal on the idea that the police created their own exigency: that by pounding on the door and announcing their presence, they precipitated the (phantom) attempt to destroy evidence. In other words, had they simply applied for a warrant, they would have received one, as the smell of smoke would provide probable cause. Justice Ruth Bader Ginsburg, echoing the Kentucky decision, wonders in her minority opinion

May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.

Justice Ginsburg argues further:

There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[persons] in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause . . . sufficient . . . to obtain a warrant to search the . . . apartment.” As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry.

Remember, for the search to be legal, it’s got to be not just plausible, but likely, that things transpired the way I described above. Moreover, the exigency argument applies only to the destruction of evidence. If the people in the apartment were merely hiding that evidence, there is no legitimacy to breaking the door down. Ironically, if they had in fact successfully hidden the drugs just to the point that they were not in plain sight, there would be no question than a warrantless search would have been illegal.

Even the SCOTUS majority agrees that for “a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves.” More importantly, they also grant that it is “a basic principle of Fourth Amendment law… that searches and seizures inside a home without a warrant are presumptively unreasonable.” In other words, it is not the apartment-dwellers’ responsibility to prove that the search violated 4th Amendment protections, but the state’s responsibility to prove that it did not.

Despite this, in large part because they simply assumed that the weakest part of the state’s case was true “for the sake of argument” (apparently because, and perhaps only because the Kentucky Supreme Court did so because they didn’t need that argument to decide against the police), a huge majority of the SCOTUS ruled the search was legal. Interestingly, had the police been competent enough to have chosen the right door on which to pound, it is much more certain they’d have needed a search warrant to enter the apartment of (apparently) a couple of small-time druggies. Police who know what the hell they’re doing need to follow the rules. It’s only the caricatures of the dumb and arrogant cop who, by virtue of their very unfitness to serve, are granted the privilege of ignoring the US Constitution.

This is serious. No, just as I don’t anticipate serial abuses of Indianans’ civil liberties as a result of that state’s absurd ruling last week, neither do I expect wholesale home invasions to stem from this SCOTUS decision. It is troubling, however, to consider the possibility that this case might be used to justify the unwarranted search of even a single citizen: a petty doper and coke-head now; perhaps just someone the police have a grudge against in the future. Some blogger who tends to disbelieve police stories without corroboration, for example.