> That seems asinine to me

Until you realize that child pornography would be protected by the First Amendment without obscenity carved out.

The Miller Test is what defines obscenity, and it seems pretty reasonable to me: is it about gross sex according to the average person (not the most Karen person), and does it lack serious literary, political, scientific, or artistic merit.

Honestly, I'm not aware of a Supreme Court case that held something to be obscene that was IMO wrongly decided. Pornography is fine. Even lolicon (cartoon sex of children) has been protected under the First Amendment and not deemed obscene.

I disagree. The core of freedom of speech is freedom of thought, conscience and belief, without fear of retaliation, censorship, or legal sanction. Die Gedanken sind frei is older and more fundamental than the right to criticize the government.

Threats, assault, and murder is different since they represent real and substantial harm that is universal recognized. Thoughts are permitted, but the acts are not, which include threats. The line between thoughts and threats might be fuzzy, but the distinction is not.

The legal question around Kiwi Farms has nothing to do with freedom of speech and everything to do with the legal theory of assisting, and platform liability.

If you don't fear the gulag, you're not paying attention. He routinely attempts to put his political enemies in jail.

Even if that was true (it's not), freedom of speech is still more important than a few peoples lives

That’s a good call out, I should be more careful with my words. Practically, I haven’t seen age verification implemented online without some kind of identify credential furnished. But I didn’t mean to imply some kind of IAL2 compliant identity assurance or something

Genuine question, how do you age verify without KYC?

Do we have any real world examples where this exists?

Because that's what it is really about. Whatever label you put on it, it's really about removing privacy.

Because in an environment with personal computing devices and where consumer tech companies' primary business is surveillance, the two are equivalent.

(Personal computing devices make it so anyone of a certain age can run software that proxies their credentials to another user (either for profit or activism), and the primacy of the surveillance business makes it so that third parties can never be trusted to mask your identity)

This doesn't work, because something still has to be stored (unless you like the idea of being nagged everywhere you go online (including just clicking links) to "verify your age"). That upends the entire "well it's just like verifying your age at a bar" idea.

One place tried to scan my id recently. Hopefully others will speak up against it but I am not optimistic.

Unfortunately no. In my state all the bars and nightclubs near colleges scan IDs and keep a copy.

The fakes are so good now that the state basically admits they can't expect the bouncer to detect them. So they keep an image to prove "hey we tried our best".

Hands are part of your body. Pornhub is a commercial website distributing age-restricted content. We already require ID for buying alcohol, cigarettes, and lottery tickets without it being a constitutional crisis. Requiring age verification to access porn isn't a First Amendment issue any more than carding someone at a liquor store is. This comparison makes no sense.

>Why don't we age gate hands?

Making this sort of reductio ad absurdum doesn't make you seem witty or clever. It just makes you seem pedantic and unable to reason about things like a functioning adult.

If you've got cash, you can go to Walmart and setup a prepaid cell phone with internet access. No ID or address required.

> I wonder why isn't operating them age-gated.

It is! Have you met a baby before... no teeth, severely diminished strength and muscle control

Kids cannot check out adult materials. Nor can they attend a library alone until middle school. (At least around here.)

It's discrimination, should be 65 like everywhere else.

Seriously, I won't limit the maximum age, but would rather use a cognitive ability assessment. It in fact already exists, e.g. as the TV debates for presidential candidates. Were the voters paying attention,..

The problem is you can't draw non-arbitrary lines.

Consider an example I ran into a few years back. It was a web project, lots and lots of closeups of female genitals. Porn? No--educational, the purpose was to provide as wide as possible a sampling of what's normal so people don't get focused on the idealized representations in porn.

One of the sports companies did something similar with breasts, it was accepted.

Yes, if the botany app shares sensitive information like their exact location and possibly home/workplace then the app is to blame if it allows children and even adults to publish such information without explicit share-with-world opt in design.

That's not what the ruling is about. Read the article.

I guess you didn't read the article or understand the SINGLE MAIN POINT: this case isn't about PORN. IT'S EXPLICITLY NOT ABOUT PORN. You couldn't have made a more off-topic, entirely wrong comment if you had tried. Here is the first two paragraphs since you were unable to load it yourself.

>Over the summer, the Supreme Court’s conservative majority upended decades of traditional First Amendment standards to say that Texas could put in place an age verification law if that law was intended to keep kids away from porn. As we argued at the time, the ruling had all sorts of problems, but even leaving those aside, it was still pretty clearly limited solely to situations involving age gating adult content. Not news sites. Not fitness apps. Not therapy platforms. Porn.

>Texas, predictably, heard “you can age gate porn” and decided that meant “you can age gate everything.” Because why respect constitutional distinctions when you can just pretend they don’t exist?

If you want to keep thinking about porn then do it somewhere else. We're not discussing your obsession. This federal case, this article, this comment thread are about Texas trying to apply the age-gating for porn to non-porn things.

doesn't matter, i think you missed what i said. Do texans think it will be harmful or not? Democracy is not technocracy, what is actually factually correct is not what the law enforced but what the people believe is correct. If Texans believe electricity causes cancer, they can ban electricity in Texas.

If you're saying Texas is planning on gatekeeping the entire internet, it is indeed a bad law. But if they're simply giving themselves power to identify what is "bad" and require that site to age-verify, that isn't really a new power states are getting is it?

Let's be real, they can do whatever they want. The question is, should they? I don't think this is a clear violation of free speech, restricting speech from the ears of children has always been a thing in every modern government. It was always possible to buy porn magazines for example, but states required id verification in stores to sell them. You can watch porn on cable channels, but only because they were paid and an adult consented to it.

Another way to look at it is, porn is a sexual encounter, minors can't consent. From Texas' point of view, they are simply prohibiting a non-consensual sexual encounter.

It is not interstate commerce, because commerce isn't regulated here, free porn sites are included. If states can tax websites, they can also regulate content.

> It seems to me that the purpose of having different levels of government is that more local levels can enact their own policies, while at the same time higher levels can restrict those local jurisdictions from egregiously misusing their legislative power.

That's not the purpose at all. Who decides what is egregious? It's a simple question of democracy. In a federal government, states represent their population democratically, and as such the federal government restricting what they do is a direct inhibition of the state's residents' voice. Where the federal government intervenes is in matters of inter-state affairs, immigration, and matters which even if the majority of the state's residents want things a certain way, the impact on the minority of the state's residents is found to be intolerable by the country's population. Ridiculous is fine, so long as it doesn't harm the minority or interfere with federal jurisdiction.

> you must accept the underlying principle that the will of the whole can override the will of a part.

Can and should are different things, we can get rid of state governments or the constitution entirely using lawful means. The discussion here is what was the architecture and design behind the existing system of democratic federal governance? Since the outset, states had a decent level of autonomy, the idea was if you didn't like it one state, you had other options.

The part many gloss over so easily and dangerously, is that the United States is as the name implies, a union of states. States with their own constitution, military force,etc.. they're not administrative provinces. The country itself is not a country of its own, its identity and components are states. There is no America without states. States and their citizens have a very strong sense of identity and self-determination. Texas in particular is always threatening secession, it's just for show, but it does reflect on how unlike an administrative province, they can and have in the past been their own country.

> but about the concrete question of whether this particular policy is too ridiculous to allow.

Again, I disagree. Should swing voters on federal elections in Winsconsin or Pennsylvania have a say in what is too ridiculous or not? That's the question. if so , what's the point of a state?

The electoral college and allocations of house reps and senators the way it is done is considered acceptable because states have rights.

The population of the US is too diverse, with varying belief systems, economies,etc... to impose your view of what is too ridiculous is equal to imposing your beliefs and world views over them.

> Do you believe that this specific policy (or various others) in fact reflect the will of the people of Texas?

Yes, without a doubt. If texans had a referendum on this, they will ban porn outright, consumption, trade and production.

> Thus again we are really arguing not about "democracy" but about the substantive content of the laws and whether certain laws in their substantive content warrant some kind of special procedures or consideration.

No, still about democracy, the substance of the law is relevant only when states exceed their authority. The limits on state rights and federal rights are very clear in the constitution. What isn't explicitly legislated as federal law, can be legislated as state law.

FYI, in texas, there is still a law limiting the number of dildos a person can own. That's how ridiculous things can get there. If you don't understand why, that's because you're not in texas or understand their beliefs, and that's fine, that's why you don't get to tell them what laws are too silly for them.

> then why can we not allow the larger jurisdiction (e.g., the federal government) to pass a "ridiculous" law restricting the actions of smaller jurisdictions?

As i outlined earlier, technically the majority can, and they have, and that is precisely what is leading to the current path of civil war, i don't think the union will last down this path. If the majority of the country feel certain rights need to be protected for the minority of all states, then that should be a federal law, that should be the only threshold outside of explicitly outlined domains in the constitution such as interstate commerce and immigration.

> People often try to answer such questions by referencing the constitution, but I don't consider that a legitimate answer if we want to take seriously concepts like "democracy". If democracy is our goal, we need to be prepared to question whether the US Constitution achieves it, and so be willing to engage with the entire mess of how we resolve "51% vs. 51%" disputes of the type I mentioned above.

The main goal is really the preservation of the union. at some point, this becomes an unhealthy relationship, for how long should texans put up with their voices and views being trampled and ignored. Taxation without representation is literally how the country came to be, you're suggesting to repeat that. The people that live in a place get to determine their laws and fate. It just so happens, states are the units of government that are by design meant to legislate day-to-day aspects of people's lives (even more than municipalities which tend to focus on less impactful things not legislated by state govs).

> Let's say you like pork and want to eat some bacon,...

Are those things protected fundamental rights of all americans? If not, then you can't eat bacon, have 5g towers, private nuclear reactors, you can beat your kids,etc... but the last example is good, because corporal punishment is still a state thing and allowed in texas, but outright child abuse can be considered intolerable because those children didn't choose the state they're in and they must have some level of country-wide protections, but even then, such laws should only be passed if states are failing to do so, as a last resort that is. Not eating bacon isn't harming any minority population in texas, neither is 5g, but being physically hit obviously is. So the protection of the minorities is the exception there.

As i mentioned in another comment, if texans feel electricity causes cancer, they can go back to burning wood and living in the dark. The only question is was the election process they followed free and fair. Since people survived pre-electricity, no one can claim they're being harmed, so long as they're allowed to leave the state.

> There is no getting around the fact that sometimes if you are in the minority you are not going to be able to do what you want. We can try to make allowances and provide protections, but still there is going to come a point at which the majority will say that the minority position is "too ridiculous" (or "too burdensome") and simply will not be accommodated.

It isn't a scientific formula, people's views and attitudes change. But things should generally be left to states. Not liking it is not a good enough threshold. disagreeing with it isn't either. The country as a whole needs to agree that it should be a federal law, and proper federal laws need to be passed.

You see, in this case, it is judges making the law. If a federal law preventing states from implementing age-verification was passed, that would be democratic since texans are represented in the federal government also. But this is twisting and interpreting the constitution according to the views of plaintiffs. Since restricting by age access to content is nothing new, and it's been tried many times at the supreme court, an explicit federal law to override state law is needed. Even the voting and civil rights acts were federal laws. Ultimately, the federal government can override any state law, period. But like in the past, it is risking civil wars, and disunity. We are already in a state where the country is tearing itself apart. That isn't a hyperbole, when Biden took office, multiple historians warned him that in 10 or so years, there will likely be a civil war if i recall correctly (or was it more vague?).

> And this has nothing to do with federalism! The issue is just that the consensus within a group of people may not match the consensus within every subgroup. Federalism is just our word for talking about a very particular instance of this, which we have convinced ourselves has some special status because a piece of paper written many years ago uses the word "state" a lot. But if we want to think about democracy we need to broaden our view a bit.

No, it very much does. the concept of the state is literally in the country's name. As you noted, even the constitution can be changed, maybe smaller geographic regions should be states instead? Maybe we should have direct representation over the internet. Those are civic debates to be had and legislation that need to be passed.

Consider that in this case, Texas is trying to protect children (sincerely or not, it is the popular perception in texas). I'd say telling them they can't because the greater country feels like porn is a more important right sounds like an unhealthy relationship, one that should promptly be dissolved peacefully. But ideally, other states won't age restrict porn, and people who prefer that will move there. People who live in Massachusetts will hate the laws in Mississippi and vice-versa. California has lots and lots laws most of the south hates. It isn't a matter of legality but of politics to decide which ones should be forced upon all americans. If publishing porn or consuming it is a right of all americans, as opposed to a policy where americans are expected to leave the state if they don't like it, then it should be encoded as such, at least as a federal law (it isn't today).

Lastly, very long post, i made the effort to reply to it, but let's keep followups brief please? :)