The Supreme Court could decide the fate of Pornhub and the rest of the internet.

The most memorable question from the Supreme Court’s oral arguments about the potential for seismic change in the Internet came from Justice Samuel Alito. “One of the people here is the owner of Pornhub, right?” Alito asked Derek Shaffer, an attorney for the Free Speech Coalition, an adult industry group. “Is it the same as before? playboy magazine? Is there an essay out there by a modern equivalent of Gore Vidal and William F. Buckley, Jr.?”

Pornhub, a large adult web portal, does not publish essays by prominent intellectuals. (Shaffer says: do Host a sexual wellness video.) The question inspired numerous comments on social media, along with several quips directed at Justice Clarence Thomas, who declared during oral arguments. That”playboy It was about the squiggly lines of cable TV.” But as funny as that quote was, What the judges said was not a joke. How much protection does sexual content and other legal speech deserve if hosted online?

FSC v. Paxton HB 1181 in Texas would require sites with a lot of sexually explicit content to verify the age of users and post a scientifically unproven health warning that porn “is proven to be harmful to human brain development.” After lower courts ruled the law unconstitutional, the Fifth Circuit Court of Appeals allowed the law to take effect. Today, both sides (including Chief Deputy U.S. Attorney Brian Fletcher) argued primarily over whether the court used the right level of scrutiny to assess the risks of the law. But the argument also touches on larger questions, including whether the advancement of the Internet has made older Supreme Court decisions obsolete.

“We are at a very important Internet law crossroads,” says Christopher Terry, associate professor of media law at the University of Minnesota.

In some ways, it is a very familiar intersection. at Reno v. ACLU and Ashcroft v. ACLU In decisions between the late 1990s and early 2000s, the Supreme Court repeatedly ruled that online age verification laws for adult content were unconstitutional. furthermore, FSC v. Paxton It’s the latest in a series of recent internet legal challenges, including the TikTok ban case. TikTok v. wreath — I heard it last week.

“The level of sophistication and energy seemed a little low in these arguments. “I see fatigue from judges on Internet issues,” says Blake Reid, an associate professor of law at the University of Colorado at Boulder. “And I think the issue of age verification in particular is one that the courts have faced many times before.”

Current courts have decided some past cases in narrow ways that do not address larger issues about the Internet. Reid thinks the justices appear to be conflicted about whether to do that here, that is, to simply refer the case back to the appeals court. (The U.S. government also went to court to oppose the 5th Circuit’s decision, promoting a middle ground between FSC and Texas, but not the Verify All Age Act.) Would you like an answer to whether this is constitutional or not?” he says “Can we take a very narrow approach and make this not our problem, or should we just jump in and deal with it?”

Once the courts get involved, one issue stands out in particular. Previous rulings have found that age verification systems from the 1990s and 2000s placed an undue burden on people’s speech and that filtering software could serve the same purpose. But the court also said that when the Internet changes: At some point in the future, the analysis It may change. In particular, conservative justices like Alito and Thomas have criticized how today’s porn landscape and age verification technology have changed, and by implication: reno and Ashcroft It may not be relevant. “To my knowledge, this is the first time a court has actually asked the right questions,” says Terry. “I’ve been asked several times if these are still any good.”

Which brings us back to the squiggle and Gore Vidal.

“It’s actually not that crazy of a question,” says Terry of Alito’s hypothesis, despite the odd date being mentioned. Texas claims sites like Pornhub are pornographic for minors. This standard applies to works that have little legal protection and no artistic or other social value. FSC, on the other hand, argues that HB 1181 would capture things like sex education videos from the internet. Meanwhile, Thomas cited cable TV to argue that today’s mass access to adult content is “in a whole different world,” creating a more urgent imperative to keep it away from children.

Gautam Hans, a law professor at Cornell University and a First Amendment expert, says there is no clear winner overall today. “If you look at the range of results, I think the range is very broad,” says Hans. The Verge. The final outcome will vary greatly depending on how far the court decides to review its previous decisions. “There was a feeling that technical filtering was not working or was insufficient. “Or over the next few decades, there’s more evidence that this isn’t actually a good substitute,” he says. But this argument cuts on both counts. That’s because it’s unclear how well age verification will work. “I agree that technical filtering is not a panacea. I don’t think there is a panacea,” adds Hans.

Many states have passed age verification rules for online pornography; FSC v. Paxton It can have a direct impact on whether or not you face legal challenges. But the impact can go beyond porn. both TikTok v. wreath And this incident is in the interest of the government, namely national security. TikTokprotecting children FSC — concerns about freedom of expression should be ignored. “We filed two major cases in five days that dealt with whether the existing First Amendment still applied in the same way to Internet content,” says Terry.

And several state and federal lawmakers have called for stronger age verification for social media, sometimes with proposals to ban social media use by minors. Opening the door to porn verification is no guarantee that these efforts will succeed, but Hans said it could make it much more likely that lawmakers will try. “If the Supreme Court says that age verification in any form can be constitutional, I think they will extend that reasoning to other substantive areas of Internet regulation if you are a state in other circumstances. ” he says.

Now, Hans has a mild offer for the judges. “I think Alito needs to get some more modern references,” he says.