Christian Nationalists And Bigots Stump For Ken Paxton In SCOTUS Age Verification Case

Legal Issues

from the the-real-agenda dept

Scores of organizations from across the anti-pornography movement have filed amicus briefs supporting the state of Texas and Attorney General Ken Paxton in a U.S. Supreme Court case dealing with his state’s draconian age verification law. In 2023, members of the Texas legislature adopted House Bill (HB) 1181, which explicitly singles out online adult platforms by requiring age-gating measures and health “warning labels.”

The Fifth Circuit erred in its ruling on HB 1181. Instead of applying strict scrutiny to review the law’s implications on protected speech, the court applied rational basis review, a lower standard of review. Since HB 1181 is a content restriction that censors speech the First Amendment otherwise protects, Supreme Court precedent says it should apply strict scrutiny. This error by the appeals court was so concerning that outgoing U.S. Solicitor General Elizabeth Prelogar filed an amicus brief supporting vacatur, asking the court to send this case back to the Fifth for the application of strict scrutiny.

However, this common sense approach is missing among those supporting Paxton’s defense of the law at the Supreme Court. A review of the amicus briefs on the docket supporting Paxton reveals a who’s who of censorial social conservatives and populists. Not surprisingly, the Age Verification Providers Association (AVPA) filed an amicus brief supporting Paxton. AVPA is a trade group representing companies, such as Yoti, that develop and market age verification software to clients, including online pornography companies.

Another amicus filing is led by 24 predominantly Republican state attorneys general who believe that legal pornography isn’t necessarily entitled to First Amendment protection. They argue that this type of expression pushes the so-called “ambit” of what falls under the First Amendment’s compass.

The attorneys general additionally argue:

“Texas’s law just requires the online equivalent and likewise has no constitutional defect…”

“Moving the strip club and adult bookstore online does not mean that commercial pornographers may escape regulation…The internet poses no barrier to States exercising their historic power to require age verification as a predicate to accessing adult content and activities.”

The attorneys general insinuate that pornography companies are attempting to skirt regulatory and legal commitments. Unfortunately, they urge the high court to simply overlook decades of its own precedent on First Amendment case law. Doing so would be irresponsible and plays into the hands of critics of the legal pornography industry who wish to see this entertainment sector censored entirely.

Meanwhile a set of Republicans in Congress, led by Sens. Mike Lee and Josh Hawley, call internet porn a “plague” in their filing. Most of the lawmakers attached to this brief include less-than-serious politicos like Lauren Boebert and Dan Crenshaw, who are often tied to Christian nationalist causes. Similar to the attorneys general, the MAGA members of Congress offer an outlandish explanation on current First Amendment case law.

They argue:

“Petitioners contend that a law banning child access to pornography must be evaluated under the same tier of scrutiny as a law banning the access of adults. This argument has no merit. Wherever the law draws a distinction between adults and children, adults will shoulder the modest burden of showing some proof of their age.”

This irony shouldn’t be lost upon you. Here, these lawmakers, elected by people who entrust them to protect their interests, outwardly believe that an adult lacks the right to privacy and anonymity for simply looking at age-restricted content. And, in no way, does such a sentiment supersede the rights of adults or minors. For example, Josh Hawley falls squarely in the camp that thinks LGBTQ young adult literature is “pornographic” and should be subject to similar content restrictions. Applying such a broad assumption undermines the level of safety and concern these lawmakers claim to have. It is also some of the lawmakers attached to this amicus who believe stupid concepts like how big tech makes minors gay or trans on purpose.

Other amicus filings by parties supporting Paxton are just as ill-informed. One group that filed in support of Paxton is the so-called “child’s rights” group known as Them Before Us. Founded by the conservative journalist Katy Faust, this group is on the cutting edge of transphobic campaigning and pseudoscientific fearmongering about IVF and surrogacy. Faust’s group says they “[protect] every child’s right to their mother and father,” and they do so by repeating bigoted tropes about trans people.

Also on the docket is an amicus filing led by the Council on Pornography Reform, which washed-up former child actor Ricky Schroder founded and leads. Schroder’s group, the Public Advocate of the United States and other ultraconservative legal funds further spew the weak legal argument that “freedom of expression” is anathema and that the First Amendment should only apply to “political speech.” I covered these nonsense peddlers for Techdirt before.

Fun fact: the Public Advocate of the United States is classified by the Southern Poverty Law Center as an anti-LGBTQ+ hate group. This is also true for several other groups that filed amicus briefs supporting Paxton’s defense of rational review.

Organizations tied to Project 2025, the Heritage Foundation’s policy platform for Donald Trump’s second term, also filed amicus briefs for Paxton.

As a reminder, the Heritage Foundation president, Kevin Roberts, called for pornographers to be imprisoned and for the First Amendment rights of porn companies, LGBTQ+ activists, and teachers to be revoked via his foreword in Project 2025’s policy treatise, Mandate for Leadership.

Christian nationalist groups are in full force here.

Paxton’s defense of HB 1181 is being defended by people you’d expect to support anti-pornography laws, in general. These amicus briefs highlight the true intention behind the anti-porn movement: to remove anything remotely sexual, even if it’s legally not pornography, from the culture by any means necessary. Age verification might be argued as a child protection measure by the vast majority of these folks. But, as discussed here and by their own admission, that’s just lies.

Michael McGrady covers the tech and legal sides of the online porn business.

Filed Under: age verification, amicus briefs, free speech, ken paxton, pornography, supreme court
Companies: age verification providers association, avpa, free speech coalition, public advocate of the united states, them before us