Advisory Opinions - Unsatisfying Obscenity (Doctrines)

Episode Date: August 15, 2023

First Amendment attorney Ari Cohn joins Advisory Opinions to present the complexity of age restriction policies. But first, Sarah and David update listeners on a barrage of legal activity, including: -Section 3 of the 14th amendment and the GOP’s saving grace? -Kansas newspaper suing over police raid -Hunter Biden’s special counsel (and horrible parenting) -What can and cannot Trump say? Show Notes: -Conservative Case Emerges to Disqualify Trump for Role on Jan. 6 -The Sweep and Force of Section Three - Listen to the "obscene materials" segment on The Dispatch Podcast -Jonah's take on XXX content Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we've got, we've got a lot, David. Most importantly, we have a guest at the end of the podcast to talk about age restrictions and pornography. So a little off the news topic, but also weird topic today. But you know, we like our First Amendment here

and we like to debate it and we have someone we found who disagrees with us. So that'll be a good conversation. Also, let's start kind of at the beginning here. David, I want to do a little housekeeping because we've gotten a lot of requests this week on a few topics. Yes.

One, we got a lot of requests this week on a few topics. Yes. One, we got a lot of requests on the piece from Will Bode and Michael Stokes Paulson about the 14th Amendment Section 3 disqualification for someone who engages in insurrection or rebellion who has previously taken an oath to the United States. It's a 126-page law review article. There's been also responses from other folks on the right, which has been really interesting. The New York Times has written this up. It is absolutely worth our time to discuss on this podcast. However, I think we need to reach out to Will Bode, friend of the pod, to have a good discussion, because you and I have talked about this before. And for instance, I have real questions around

whether, for instance, in Article, sorry, in the 14th Amendment, Section 3, it says, no person shall be a senator or representative in Congress or elector of the president and vice president or hold any office, civil or military, under the United States or under any state, who having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. Except Congress can fix that with a two thirds vote. Okay. So my two pieces of this are, is the president covered either on the front end or the back end? Meaning you can't hold any office under the United States. Is the office

of the president under the United States? Two, if you've taken an oath as an officer of the United States, is the president an officer of the United States? And three, is there a difference between engaged in insurrection or rebellion or given aid and comfort to the enemies of the United States? As in, are enemies of the United States those who engage in insurrection or rebellion? Or is that actually a different group of people? And I think there's a real argument around that, too. So those are sort of the three questions that I've had about why I don't think this probably applies to someone holding the office of president United States. We talked about it before.

I think we've just got to have one of the authors on to have a good discussion about this. David, do you ratify my decision? Oh, absolutely. I think having Will Bowdoin would be the absolutely right call here. It's in the meantime, we can put a link to the piece in, um, in the show notes so that you can read it. I think, yeah, we'll table it all, Sarah, even though I know that folks are eager for us to talk about this,

because we really can't do the five-second version of this. It's going to take a full episode, basically. You know, it's a hundred plus page law review article. So to sort of give it the five second treatment almost feels disrespectful. But I think you're exactly right to sort of in a law school exam issue spotter style, like spotting those issues, I think is really helpful to the audience. I'm going to follow up with another issue spotter on this. Just real quick.

This is just like a teaser for the real conversation. the audience. I'm going to follow up with another issue spotter on this. Just real quick, this is just like a teaser for the real conversation. Adjudication. Adjudication. This is not, you know, the idea of a provision being sort of self-executing. This is not self-executing. So how is this determined that someone has engaged in the insurrection, who is engaged in the behavior that would bar someone from office? So, that's a very key issue as well. So, I hope we can get one of the authors. If we can't get one of the authors, we'll have a full discussion. but yeah, it'd be better with an author. Give us a little time. Will Bode, friend of the pod. Yes. Also worth noting, the reason that even though we've talked about this before, we want to talk about it again, is they do a lot of the really good historical work around the ratification of the 14th Amendment. And there were even comments about like,

hey, I'm worried this doesn't cover the President of the United States, and someone answering that. And so that's all far better than our previous discussion, which is why I want to revisit it. But to remind people sort of where it is adjudicatorily, that's my new word for today that I made up. Remember, we had two cases on this. One, Marjorie Taylor Greene, she was not barred from running under this provision. And two, Madison Cawthorn was barred from running under this provision, but then he lost. So the case was mooted out before it was appealed. So we're kind of nowhere on this. We're nowhere. Yeah. And certainly not on Donald Trump and what I think are the far more interesting questions about the office of

the president of the United States. All right, David, we've gotten another frequent question this week about this Kansas newspaper. I just want to read some of the facts here. So late last week, the Marion County record said that police seized computers and staff's file servers and phones, as well as went to the owner's house with a warrant signed by a local judge. Why? Because there was a complaint from a restaurant owner, Carrie Newell, who accused the paper of illegally obtaining and disseminating sensitive information on a drunk driving conviction against her. However, the paper said it had obtained the information legally from a tip, used public online records to verify details, then decided against publishing the information and instead contacted the police. So they contacted the police about getting this information, and then their offices were raided as a result because they also executed a search warrant on the home of the owner.

The co-owner, Joan Meyer, who, quote, was otherwise in good health for her age, died the next morning. She was 98 years old. So there's a little bit of an actuarial problem here. Right. Correlation does not equal causation. In this case, especially. So the Marion County record is suing. Of course, they're saying this violated the First Amendment and quote, basic human decency. Here's the problem and why I'm not ready to talk about this yet, David, because you have the response from the police side saying that basically we don't know what they know. And they're right. Meaning, for instance, on the facts that we've been told by the one side, that sounds really egregious.

told by the one side, that sounds really egregious. But if the police had evidence of wrongdoing by the paper that we are not aware of yet, and they can't tell us about yet, it would really change the whole thing. So if you're asking whether based on the facts that we know from one side, that they called the police to let them know they got some tip, and then suddenly the police are taking all their computers and executing a search warrant on the owner's home, whether that's a violation. Yeah, it is. Yeah. But they're claiming that's not why they did it. And so it doesn't make for a very interesting conversation if we don't actually know the other side. Yeah, that's exactly where I am. Based on the account from the newspaper, it seems, is there what's beyond egregious? Yeah. Mega there... What's beyond egregious? Yeah.

Mega egregious? Super egregious? But, like, to the point it doesn't make sense. Like, the quote from the police chief is, I believe when the rest of the story is available to the public, the judicial system that is being questioned will be vindicated. Because don't forget, they got these warrants signed by a magistrate. Now, obviously, we've seen in the past that is not a cure-all for violating the First Amendment.

But I am willing to wait. Yeah. I think we should absolutely wait. Based on what we know or what we have heard, not what we know, but based on one account, this is egregious to the level of...

Do you remember in the 80s, Sarah, how half the shows on TV involved some small-town tyranny to such an extent that you had to bring in like the A-Team or Knight Rider or Airwolf to like literally have a battle in the town square to right the injustice. Like this is A-Team level injustice if the newspaper's account is true. Like they're calling Mr. T and B.A. Barabbas right now to try to set things right. But we don't know. We don't know if that's the whole story.

So everyone just press pause. Yep. Sorry. Wrong podcast for that if you want us to just speculate. Okay, next up. Last week, the Department of Justice announced that it was appointing David Weiss, the U.S. attorney for Delaware, as special counsel in the Hunter Biden investigation. This was met with groans across the board, it seemed. Democrats were annoyed that Attorney

General Merrick Garland had, quote unquote, given in to the right. And if you think the right, who had been asking for months why there wasn't a special counsel in the Hunter Biden case was happy that now there is a special counsel in the Hunter Biden case. Boy, do you have another thing coming for you? They said this was proof of corruption to prevent David Weiss from testifying in Congress. That David Weiss himself was now compromised. He's a Trump appointee during the Trump administration who's been held over to run this investigation, but because he was involved in the plea deal that has been seen as not good, that he was definitely the wrong person as well to appoint.

A few things to note. One, what magical wand was David Weiss given when he got the title special counsel over a U.S. attorney? First of all, for the most part, a special counsel is endowed with the powers of a U.S. attorney. So picking a U.S. attorney to be a special counsel is a very limited change in circumstance. You didn't gain a whole lot of special powers, but you did get a few. One, very hard to remove the person without cause. Okay. Two, they now, the special counsel owes a report to the attorney general at the conclusion of the investigation. Those aren't really more powers. There may be more duties on both sides. But here's the one that is a more power question. A special counsel can bring indictments in other jurisdictions. A U.S. attorney has to stay within

their own jurisdiction. Now, this is relevant because the whistleblower in the Hunter Biden investigation situation said that David Weiss wanted to bring charges in other jurisdictions, but those U.S. attorneys weren't willing to basically bring the charges themselves. David Weiss has denied that all along. So where does that leave us, David? For me, I just think this is a bad time for the Department of Justice because this plea deal was a hot mess, as we've talked about in the past. They've now withdrawn the information, which means we expect actually this charges here to be refiled some other place. Maybe we'll find out maybe different charges. But basically, they're like starting from scratch in a way with

all of this. The special counsel was never going to satisfy anyone. It didn't. And there's just special counsels proliferating everywhere. And can I be like really? This will sound, I think, to surprise people. Why isn't there a special counsel investigating whether any of these text conversations where Hunter Biden clearly and repeatedly says his father is part of his business dealings? Why is there a special counsel investigating whether that turns out to be true or false? I think I've said before, Hunter Biden is the least reliable narrator everywhere. So the idea that I take Hunter Biden's word for it on anything, zero. I don't. But he keeps saying it to different people all over the place.

You have the testimony now in front of Congress from his business partner saying, I don't think Joe Biden did anything wrong. But yeah, definitely we were selling the illusion of access to Joe Biden. He talked to our business associates. Hunter Biden really did say these things to people. That to me is where you need a special counsel. I don't understand. I don't know if we've talked too much about the Hunter to Joe link. We've talked a little bit about it. Oh, can I read you the text message he sent his daughter? Which primarily makes him a bad dad. Again, because I don't find him to be a reliable narrator on the underlying facts of what he's saying,

but it's enough that I'd like someone to look into it. But here's what he sent to his daughter. I love all of you, but I don't receive any respect. And that's fine, I guess. Works for you, apparently. I hope you all can do what I did and pay for everything for this entire family for 30 years. It's really hard.

But don't worry. Unlike Pop, I won't make you give me half your salary. Yeah. Here's the deal. I was thinking about this analogy over the weekend. If you're really, really mad. Okay. So what I keep hearing a lot of folks say sort of on the Joe Biden defense side of this is,

okay, all of this just seems so gross, but there's no evidence of a legal violation. There's no evidence that Joe Biden has broken the law. Now, there's some listeners who say, wait a minute, there's some messages that say that Joe Biden was going to be involved in firing the prosecutor in Ukraine and all of this. Now, that's an issue that came up in 2019, first impeachment. The firing of that prosecutor was a matter of US and EU priority. This was something that was in the works for a very long time. Put that aside, the defenses of Joe Biden run along the lines of, well, we haven't seen evidence that he broke the law and that even if he was involved in his son's business

after saying that he had never had any interactions with his son's business, that's still not illegal. It might be gross. Aren't we going through weeks of revelations about the Supreme Court that are put under the category of sort of gross, but not illegal? And that is now the number one way to think about the Supreme Court in some people's minds. But when it comes to Joe Biden, it's like, well, we don't see any concrete evidence of lawbreaking. So therefore, we're not going to think about this. That to me seems like a problem, Sarah. That seems like a problem. So apply the same standards to everybody. If your view is that proximity to an enormous amount of wealth, even if there isn't evidence of it flowing directly into your coffers as of yet, or your family accumulating an enormous amount of wealth

on the basis of its proximity to you, that's gross. And yes, it's gross for the Trumps too. I know for everyone who's sitting there jumping up and down, you know for a fact that this podcast is the last podcast in America. You think we don't find that gross? Yeah. And if it's twice as much money, I find it double gross. You know, so it's just gross, which is another one of these reasons why this idea that we're

staring in the face, a rerun of Biden v. Trump. I understand the reasons why, like you can explain to me the reasons why, and I understand why this is happening, but it's absurd. reasons why, and I understand why this is happening, but it's absurd. And I'm going to say, and I will not, I will stand here. I stand on this street corner holding my sign in the air that says this is utterly absurd that we're about to have a race of these two men again. I just, it's, can we not find people who aren't ethically challenged and older than my dad. I mean, I can't even. I'm all out of can't even, Sarah.

Is that something that young people still say? All right. Also last week, we had the hearing on the protective order around grand jury and sensitive material in the Trump January 6th case. The judge issued her ruling basically right away. On the one hand, the prosecution had been asking for all materials in the case to be under that protective order, meaning that Donald Trump could not talk about them publicly. Everything, you know, the 1.6 million plus documents, we know they've already started sending over to the defense team. The judge said, no, we'll only have the protective

order cover sensitive documents. And then the Trump team wanted basically no documents to be named sensitive. Instead, basically all the documents were named sensitive. So they won the battle and very much lost the war over the protective order. Protective orders are incredibly common in cases like this. Protective orders of this magnitude are also incredibly common in cases like this. It's going to cover grand jury material. And basically, it will cover grand jury material and witness material. Now, that's a whole lot of material, to be clear. That's like everything.

It's not everything. Please don't send me angry emails about that. But that it struck me as an incredibly normal order. What was less normal, and it can't be because this isn't a normal case, was the conversation around Donald Trump's First Amendment rights, sort of core political speech around running for president and how that's going to interact with this case in which the judge has made very clear that this case comes first and his First Amendment rights will have to give way to the needs of the criminal justice system. Lots of comments about that from the judge, David. I was curious if you had thoughts.

Yeah. I think as a general matter of principle, I think she's correct about this, that running for office is not an action that allows you to be treated with special consideration. But also, you shouldn't be treated worse either. It should be not a factor. So at one point, for instance, the Trump lawyers said this

would give Joe Biden an advantage in the campaign over me because you're preventing me from talking about this, but not him. And she's like, I don't care the political effects of this protective order. Is that reasonable? I think that's completely reasonable. But I also think that, you know, it's interesting that the prosecution has asked for a January trial date. January 2nd. Yes. And for how long as we believe the prosecution has even said this trial would take, the trial would then run into Iowa and probably New Hampshire. So he would be in trial for those two primaries.

Now, politically, I would argue, probably helps the guy. No problem. I think it does. But pretend it didn't for a second or had some effect and we don't know the effect, which is actually the case. Whoa. Yeah. No, but I also think that if you do have a trial that happens sooner rather than later, that also mitigates the damage of the restriction because there's going to be the bulk of the campaign that will still happen post trial. And so in that circumstance, I think that having a more

aggressive trial day along with a standard, and I think you're very, uh, you know, you you're very accurate in pointing this out along with a standard kind of protective order, um, makes a lot of sense. a standard kind of protective order makes a lot of sense. Now, I don't think Trump wants this, but if you don't have it in early January, well, you have, what is it? You've got an April date right now in the Manhattan case. You've got a May date in the documents case. And all the primaries.

Yeah. When is the thing going to happen? Yeah. When is the thing going to happen? So what I also appreciated, and this was sort of implied throughout, a bunch of people have asked, like, okay, what's the punishment? He violates the protective order. Are you going to throw him in jail? No, you're not. Here's the

stick for the carrot. The stick is she's going to move up the trial date, which actually works because, right, the threat of him talking about these various things is that it would intimidate witnesses potentially, but not rise to the level of actual witness intimidation in a legal sense, things like that. And so to mitigate the effects of that, you move up the trial date as quickly as possible. I thought that was pretty clever, actually.

Yeah, I think that's very clever and a quite effective stick, quite actually. Okay, David, last thing on this is the bubbling recusal motion. We know there's gonna be a recusal motion at some point in this case to remove Judge Chuckin from the case. Trump's main attorney, John Loro,

went on all the Sunday shows and said, you know, we haven't done it yet. Donald Trump has definitely said they're doing it. But let me read you a quote from Judge Chuck Ken. I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats that they were wearing and the garb and the people who mobbed that Capitol were there in fealty and loyalty to one man, not to the constitution of which most of the people who come before me seem woefully ignorant, not the ideals of this country and not to the principles of democracy. It's a blind loyalty to one person who, by the way, remains free to this day. She said this in a different January 6th trial at the sentencing phase.

That's, to me, an unwise thing to say. It was an unnecessary thing to say, and I'm annoyed that it was said. Because now she's ended up with this case in front of her. It's why judges are supposed to be pretty careful about stating their opinions from the bench. However, when it comes to the actual recusal rules, here I'm looking at Canon 3C1A, a judge should recuse if, quote, the judge has personal bias or prejudice concerning a party. It's very broad and vague. There's many folks who have said, by the way, that this only applies to sort of outside actions.

So like, as long as you're saying something from the bench, you're fine. Yada, yada. Recusals are very, very hard, very disfavored. I don't think we're actually all that close yet, but I also can assure you this will be in any recusal motion. Do you have a different take? Nope. Nope. Nope.

No, I think there's not. I'm with you. That was unwise. That was absolutely unwise. But to rise to the level of mandatory recusal, no. Yeah, I just don't even think we're like there. One thing that you may not know if you don't practice law is that judges actually share their opinions all the time, all the time. And like, I don't like

this one, but is it within the bell curve? Like not even the tail. I think it's actually within the bell curve. I agree with you completely. Also, though, I had an interesting conversation with a federal prosecutor who pointed out that some of this issue is the jury pool itself. So Judge Chuckens said this, of course, in a closed setting, there were probably 15 people in the courtroom. So there's no possible taint there. But every time Trump blasts out what she said, of course, more and more people are seeing it, meaning more and more potential jurors are seeing it. And so what you have is the possibility, you know, if she had said this during his trial in front of the jury, there probably would be a motion for a mistrial or even a recusal because you could at least hear her to be implying that

the defendant is guilty, i.e. should not be walking around free. Well, the more Trump can get the word out there that she said this, the more you're tainting potential jurors with the notion that this judge does not think that the defendant should be walking around free. So even though this would not normally be something for a recusal or even, you know, a mistrial or something else in a different setting, it actually does have the ability to to affect jury selection. it actually does have the ability to affect jury selection. Well, Sarah, I thought we were going to roll straight from Hunter Biden into gun rights because the Fifth Circuit just decided a case that could have direct bearing on Hunter Biden's case. And you know what? Here's why you should listen to this podcast. We forecast this. We talked about this. We said that, you know, look, part of the Hunter Biden case is the purchase of a gun while he was using drugs. And it's far from clear that that prohibition, that criminal prohibition against purchasing a gun while using drugs is going to hold up under the new Bruin analysis. And then lo and behold, here comes the Fifth Circuit

Court of Appeals with an order saying that a person who possessed a gun while he was regularly using marijuana, which for some reason they spelled marijuana with an H, violates the Second Amendment. Very interesting. And we can talk about the merits of the case, but Sarah, there is a sort of a way of speaking that I want to revive. And that is they're talking about trying to compare drug use and gun ownership with alcohol use and gun ownership. And in that, they said they used the phrase disguised in liquor. There is an old early American statute that prohibited gun ownership or gun use by people who are disguised in liquor. And that was the phrase for drunk. And I love it. I want to bring that back. So two things on that. One, I've got three weeks left in this pregnancy and I would just love to be disguised in liquor right now. It's like a joke that at your most uncomfortable, it's hot outside.

I mean, just I can't even describe like, yeah, disguised in liquor is where I'd like to be right now. But two, I think that's a weird phrase because so often we think of in vino veritas, right? Actually, liquor brings out your truer self or some core self. So to say it disguises you is sort of the opposite of that. So I also found that to be interesting and odd. Yeah, yeah.

No, that is interesting. But the Fifth Circuit's reasoning is really pretty straightforward. It takes the line responsible law-abiding citizen, which I have hammered in the context of the domestic violence restraining order case, Rahimi, that if somebody is subject to a domestic violence restraining order,

they're not responsible in law-abiding, and said, no, no, no, that phrase, responsible law-abiding, don't put too much on that because in theory, they didn't use this analogy, but it still holds up. Well, if you have been subjected to speeding tickets, for example, are you still, quote, law-abiding? How strict are we going to apply the language responsible or law-abiding? And the answer to that is going to have to be found in the historical record. It's going to have to be found in text history and tradition. And look, the best comparator to narcotic usage is actually alcohol usage.

And there's a lot of early American examples of sanction if you're using a gun while you're Examples of sanction if you're using a gun while you're intoxicated, but not the same thing as using a gun while you have the status of being a drinker. a prohibition against gun ownership. So therefore, moving on from that, the fact that you use other kinds of intoxicants, could that be a prohibition on gun ownership? And if it's not for alcohol, why would it be for marijuana?

Shout out to Judge Jerry Smith on the Fifth Circuit. He wrote the opinion. So that's where the marijuana comes from. If there's any Smith clerks out there listening, feel free to tell us why you decided to go with that spelling. We're curious. But second, David, this also raises something interesting diversion for Hunter Biden on this 922G3 charge, because basically they didn't want to have the president's son be the one to challenge the constitutionality of this gun provision. But it was already happening and it was already going to happen. And sort of the constitutionality of this, if you were looking to get bad guys in jail,

let's say, with gun charges, what you actually want to do is definitely not do pretrial diversion on this. Get all the plea agreements you can get, because those are not collaterally challengeable, even if this gets struck down later. Now, no doubt the Biden folks weren't going to agree to that because they knew these cases were pending. But it does raise the question of why DOJ agreed to it in the first place. And then, of course, the whole thing fell apart, so it won't matter now. So we've got Rahimi, which the Supreme Court has taken on domestic violence restraining orders. We've got this case on drug use. Sarah, put on your forecasting cap.

I just can't tell you how important 922G is to the Department of Justice. How many cases a day are brought under 922G, which is felon in possession, the domestic violence stuff, the controlled substance stuff. I mean, those are all actually far. I mean, I can't even like percentage wise. They're so tiny compared to felon in possession. Yeah. But nevertheless, like all these collateral challenges on 922G are a hot mess for gun prosecutions right now at a time when I think everyone agrees we at least should be taking the illegal guns off the street.

Yeah, it's a mess. And the interesting thing about this is that once again, you're dealing with a legal regime that essentially just flat out didn't exist and wasn't contemplated in the founding era. So the whole concept of domestic violence, not a thing. Well, the whole role of guns has changed so much in our lives. The idea that you were disarming someone back then also would have to be so, so serious given

what you needed your gun for, like food for your family. So of course they weren't disarming everyone for every other crime imaginable because you were basically sentencing the person to death. They couldn't defend themselves. They couldn't get food for their family. You know, it's so different now. You can argue the self-defense point.

I get all of that. But you also don't need it to eat during the winter. Right, right, right. And look, there were certainly people who lived in towns and stuff who did not need guns to live and eat, but it was much more prevalent that you would need a gun to keep food on the table for your family in that era than it is now. Absolutely much more prevalent. And similarly, when you say, okay, on the domestic violence front,

that there wasn't the same kind of legal apparatus to protect women from domestic violence, there was also not a legal apparatus surrounding controlled substances. And it wasn't until much later in American history that we even began to create such a legal apparatus in response to what turned out to be like really widespread drug addiction and opium addiction and things like this. And so I think that it gets, it just, I'm just having more and more trouble with the text history and tradition test because the analogs between the late 18th or the mid 19th century, when you're talking about between the second amendment ratification and the 14th amendment ratification, it,

it is actually the case that not every legal problem in that time period has an analogy to the current time that It's just not the case. You can't do the one-to-one, which is why I'm going to go back to my pitch for levels of scrutiny versus text history and tradition. But it's going to be very interesting, and I feel like Rahimi is going to be very clarifying for this case as well.

This is the kind of case that Rahimi, this is the domestic violence case, will likely result in a decision, which the Supreme Court will then say to a lot of the lower courts that are, you know, pushing forward the felon in possession cases, pushing forward the drug user in possession cases. Post-Rahimi, they're going to say,

okay, now rethink all of those cases in light of Rahimi. Absolutely. A case like this is going to have a cert petition pending at the court. It's going to sit there until Rahimi is decided, and then it's going to get either denied or GVR'd based on that. More likely GVR'd, meaning granted, vacated, and remanded in light of the Rahimi case, as in just do it again and now do it with this precedent under your belt. Can I come forward with a hot take? I love a hot take. Rahimi is more important than Bruin in Second Amendment jurisprudence. That the Bruin case, the idea that you can bear arms outside the home, the outcome of that was

essentially a foregone conclusion that, yeah, you are going to have a right to bear arms outside the home. The Rahimi case is actually going to tell us what kind of regulation under the text history and tradition test and how the Supreme Court views the text history and tradition test. how the Supreme Court views the text history and tradition test. That's going to have direct impact on a host of current laws that have been widely accepted in the United States of America for a very long time in a way different from even New York State Rifle and Pistol Association v. Bruin, which was dealing with a very niche law relative to the rest of the country in New York that was much more restrictive than almost anything you're going to find anywhere else. So

striking that law down was niche. These laws, this is sort of core of our gun law enforcement apparatus in the United States. Yeah, they're kind of apples and oranges to me. One is, you know, affecting sort of individuals who want to move around with their guns. So in that sense, like, yeah, I don't, to be very honest, I don't care very much. I care from a interesting constitutional law standpoint. I don't care of like practical standpoint.

Whereas the other one is on getting guns off the streets from people who shouldn't have them, the criminal justice system, how much we're charging people with crimes and what crimes. So yeah, it's practically way, way, way more important if 922G is now not going to have many legs to stand on. Yeah, completely agree. Completely agree. Completely agree. and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving.

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Terms and conditions apply. All right. Should we roll into our guest? Let's do it. I'm excited. Porn! And we've got Ari Cohn, Free Speech Council at Tech Freedom joining us. Ari, welcome to the pod.

Fantastic to be here. Thanks so much for having me. And we got connected because you were making the case against age restrictions for Pornhub. So you are for minors accessing pornography. As we all know, this is something you believe strongly in. I knew that was going to be how you're going to intro him. I wasn't going to say a word about it. I was just going to wait and see. How is Sarah going to introduce Ari?

I saw it coming a mile away, too. All right. Make your case. Okay. Well, I was going to start off by saying it's totally fine to think that kids shouldn't be looking at porn, but you kind of wrecked it for me. So I guess globally, I think one of the things that's really interesting about this whole kerfuffle is that it really highlights how unsatisfying and messy obscenity doctrine is as a whole. It's one of the really few instances where speech is entirely protected for one set of people and entirely unprotected for another set of people. And that makes regulating it

super difficult because regulating the subset of people for whom it's prohibitable invariably affects the rights of the people for whom it's constitutionally protected. And there seems to be a lot of dissonance, especially with the variable obscenity doctrine, where things can be obscene as to minors but not as to adults. In the Reno case, the Supreme Court compared the Communications Decency Act with the statute in Ginsburg that prohibited the distribution of materials that are harmful to minors, saying that the CDA was much... Slow down for a second. CDA. So when you say Reno case, that's ACLU versus Reno. Sorry, I'm used to So ACLU versus Reno. Set the stage about what the CDA was, Communications Decency Act, which also contained the legendary Section 230, but we're not on that. But what was aimed at things like porn and the accessibility of porn online, which was one of the very first things that the internet broadly used

was actually used for, because why wouldn't it be? So the Communications Decency Act, or CDA, Decency Act or CDA criminalized the transmission of indecent or I forget what the other word they used was speech to minors using the internet. And it was insanely broad. I mean, it basically would have had the effect, as the court pointed out, of if somebody in a chat room said, I'm under 18, basically prohibited adults in that chat room from saying a whole broad swath of constitutionally protected things. So it worked its way up through the courts, and the Supreme Court struck the law down in Reno versus ACLU. in an ACLU, a renoverse ACLU. And so in comparing the Communications Decency Act to previous statutes that prohibited the kind of physical IRL distribution of materials harmful

to minors, the court said that the CDA was broader because at least it allowed parents to buy whatever materials that they thought were appropriate for their kid. It just prohibited the sale of these things to minors. unprotected for minors to begin with in its entirety, couldn't the state just prohibit parents also from giving it to their kids if it's not protected for them at all? There's just a little bit of uncertainty as to whether material harmful to minors is actually unprotected entirely as to minors, or if it's some kind of narrower but not totally outside the First Amendment category of speech for minors. And I say all this because it makes for very confusing doctrine, but nobody really has any appetite for fixing it because it's messy, it's gross, nobody wants to deal with it. So there are a couple of things, and David, I'm going off of your article in The Atlantic last week,

and I think the place to start is the secondary effects doctrine, because if you can regulate the internet pornography based on secondary effects, the constitutional analysis becomes much easier. And the reason for that is because the secondary effects doctrine is a legal fiction that basically allows a court to treat an otherwise content-based regulation as content neutral if it is aimed at fighting the secondary effects of something. So for instance, it's usually used in adult business zoning. So if the city says three adult bookstores in a block area is going to actually create some kind of crime-ridden hellhole of a block, then it's aimed not at actually reducing the offensive speech based on the offensiveness of the speech,

but in remedying those secondary effects of the crime that came with it. The secondary effects doctrine might actually be the only thing messier and more unsatisfying than the obscenity doctrine, simply because it doesn't make any sense. It's a complete fiction, and it's problematic enough when you think about extending it even past adult business zoning and even to adult business zoning. But if you try and extend that onto the Internet, it's hard for me to see where it stops. rejected the cyber zoning argument. And the lower courts have followed its lead in being reluctant to apply it to anything other than more or less brick and mortar adult business stuff. But say that we get rid of those concerns. What's the secondary effect? And it's unclear to me, and this is where the messiness of obscene for some but not for others

comes in because if the effect that the state is looking to protect against is what will happen to those kids the psychological damage from seeing the speech that's a primary effect not a secondary effect but maybe the argument is that because that speech is completely unprotected for minors, or so the court says, that accessing speech unlawfully is the secondary effect rather than the actual impact of the speech. Maybe that's a plausible argument, but I'm not sure that the cases have come out that way. Some of the cases that have been justified based on preventing minors from seeing the, or accessing the speech that they're not entitled to access

have said that is still a primary effect because it ultimately derives from what will happen if they do access the material. So, you know, vending machine, a piece of regulation, regulating when vending machines that sold adult products unsupervised by an adult, that was held to not be a secondary effect because of that. You know, that might all sound super technical and weird, but think about where it leads to. and weird, but think about where it leads to. You think of mass shootings, hate crimes, etc. Those are all secondary effects one might point to. Can the government sneak into a lower level of

constitutional scrutiny by pointing to, say, the Buffalo shooting and saying that all posts about guns or posts that are deemed hateful by the state should be segregated to certain websites or certain portions of websites, I think that would be kind of a pretty big shift in First Amendment doctrine. And I think it's also important to remember that in secondary effects cases, cities don't even have to show the impact on their city. They can rely on studies from other cities saying, well, this has been our experience with these types of things. So it's really, I think it's easy to see how this quickly gets out of hand. I don't think the doctrine fits unless we're willing to tolerate

a whole lot of government intrusion into online speech and intrusion that the Reno court has particularly rejected in the past. So to me, the secondary effects doctrine just doesn't do the work. Get him, David. I'm sorry. Go ahead, Sarah. I just said, get him, David. Yeah. Well, I'm so glad you're on, Ari. I'm so glad you joined us. And as you said, the genesis of this is I posted in response to a Politico piece talking about how age verification for access to adult sites is sort of gaining ground in states. piece I wrote in The Atlantic some time ago talking about what are the legal ways that you can try to restrict access to minors who, as you note, have no right to see pornographic content without overly burdening the actual constitutional rights that do exist, which is adults. And so we know, for example, from this sort of really interesting movement that erupted in the 1980s, this really unique coalition that existed between radical feminists and social conservatives that came together in the city of Indianapolis to ban porn in Indianapolis, which resulted in this really unusual procedural, this really unusual litigation where they lost, that Indianapolis was brushed aside in the Seventh Circuit,

I believe it was an Easterbrook opinion, if I remember correctly. And then the Supreme Court summarily affirmed the Seventh Circuit opinion without even hearing argument, just affirmed it. It's the weirdest thing. I've never seen anything like that ever. So we know about as emphatically as you can know that some sort of idea that you can ban porn is just not going to fly. So with adults, there is a constitutional right to see, view, access pornography. Kids, no right. And so one of the things that I try to do when I'm talking about the internet is in many, many, many, many, many, many circumstances, people talk about the internet

without realizing that there are offline analogies that are very helpful for understanding online speech problems and that they're without diving too much into it. For example, section 230, this famous, you know, provision of this communications decency act, which essentially is saying that like Facebook is not responsible for my posts or New York Times is not responsible for my comment. Well, mine, yes, but not responsible for your comments. If professor moderates the comments in the class at a public university, the fact that they moderate comments does not mean that every student who speaks up in their class is then engaging in the professor's speech. I mean, this is sort of a... My professors would have found themselves in a lot of trouble.

Oh, yeah, absolutely. So this is, or if you watch Parks and Rec and you remember like the town meetings they had, where the fact that you moderate, well, you only have two minutes and you can't use obscenity or you can't, you have to stay on topic. Does that mean that every public comment becomes a comment by the public entity? So there's a lot of offline analogs. And so when you look at pornography and the regulation of pornography, what I'm asking people to do is look at offline analogs. So how in the offline world have we dealt with this distinction between kids and adults? And we've dealt with it in a number of ways.

One is the zoning method that you have talked about where secondary effects doctrine has been used as a justification for zoning adult businesses away from, for example, schools, away from places where families frequent, etc. So you now live in a world where people can go to, they still, adults can still go to adult bookstores, but they just can't be located anywhere and everywhere. But they're still there. Strip clubs, for example, are subject to age requirements. So local ordinances say you can't go into one unless you're 18, or maybe if it's a club

that serves alcohol, unless you're 21. And how is that enforced? You have to break anonymity to show a government-issued ID to enter into a strip club so that there's an employee of the strip club who sees your true identity as a way of enforcing your, you know, preventing access by minors. And so my thinking was, how do we replicate this kind of regulatory environment online? Because I don't think anyone can really credibly argue that adults have real trouble accessing porn offline.

That's just not an issue we have in the United States of America. A problem plaguing our society, in fact. Yeah, it is not plaguing our society. Limited adult access to porn offline. Not plaguing our society, limited adult access to porn offline. So the online world, my argument is that the Communications Decency Act was dealing with a statute that, A, was not terribly well drafted, was poorly drafted. Sarah and I have absolutely lambasted Congress. How many times for poor drafting? All the times.

All the times. All the times. And still they don't do it better. It's weird. It's like they don't even care what we think. What on earth? And then, so it's not particularly well-drafted. And it was also landing on an internet that was the baby internet. And now the internet, the capacity for things like age verification,

the widespread use of age verification, you're not going to be able to get onto Twitter or to Facebook or to Instagram without age verification. The prevalence of secure and encrypted transmission of data, all of these things are in a far more advanced state than they were in the mid-1990s, which is sort of the Atari 2600 version of the internet. And this is the Xbox One X Call of Duty version of the internet, and it is far more advanced. And so the idea that we can start to move into the online world, the kinds of restrictions of access that we see in the offline world

strikes me as A, constitutionally permissible, and B, prudent. But I also think that there are a number of folks, and Ari, you might be one of them, who say, well, some of the offline restrictions on access are too much. That world that I'm wanting to move from the offline world to the online world, that that's too much. But my view of it is, between the existing precedent that says that kids don't have this right of access, existing precedent that says that kids don't have this right of access. We have harmonized this in the offline world by creating age gating in the offline world. We have created location gating

in the offline world. And in so doing, we have not inhibited adult rights in any really material way. We can move that into the online world. And if your idea for adult rights is, I should, on the online world, is I should have superior levels of private access than I have offline. That to me, that's where that just doesn't fly. Like this idea that offline, I've got to show an ID, but somehow on the internet, I suddenly have a greater right of privacy than I have in real world showing up with my face and ID strikes me as not as compelling. So that's sort of my general case. Well, I'm glad you said that because I actually, you hit on some important things. And I think, first of all, I can't speak for every law out there because I have obviously

not read them all because I'm just very bad at my job. Ari Doan, First Amendment lawyer and reader of every law. But generally speaking, it's actually not the case that, and this is true for buying things and I think even going for strip clubs, that a place must require you to give an ID. They can be prosecuted if they admit someone under a certain age.

But generally speaking, they will ask for an ID to avoid that liability. So maybe it's six of one half dozen of another. And you've seen some websites like social media platforms, you have to put in your birthday, but Lord knows that does absolutely nothing to confirm anything. As evidenced by the fact that I put down how I was born in 1908 for everything. I don't want to give my actual birth date. I was going to say like, I've never put in my real birthday for one of those in my life. Not, not for porn just to be clear.

But I think here's where it's, where it's, where it is different. Where are you when you say go to a strip club or buy a dirty magazine at a store, the place takes a quick fleeting glance at your ID and says, okay, yeah, you're old enough. Come on in or here's your magazine. When you're accessing something online, it is different. And that is part of the reason why not just the CDA, but also the Child Online Protection Act, COPA, was struck down so many times by the courts before just finally Congress gave up. And that's because the harm wasn't just from the fact that age verification was borderline impossible. and I'll get to why I think it still is. But it was also the chilling effect of not being able to access sensitive materials anonymously.

And I don't see how that has changed, really. I I think as a general matter, actually, it's arguably more chilling today. I think we are more aware than ever about how our private data and browsing history and whatever cookies or what have you tracking us across the internet, how those things are collected, stored, and then basically indiscriminately distributed

to whoever will pay a few bucks for it. And so I think that de-anonymization in a format that we know is stored and used is going to be more chilling. Now, some states have actually tried to mitigate this by saying things like the companies can't keep records and they can't maintain the identity information. But I see two problems with that. First, I'm not sure it makes a difference because the impact of having to show your ID to access a certain website or whatever is actually what causes the chill. The average person has no

idea what goes on after that. All they know is that I want to access sensitive content and I'm being asked to provide my ID. I would rather not do that than I'm just going to get rid of it. And the courts have also noted that this will cause a burden on websites from the loss of traffic and the high cost of doing age verification. And remember, these laws apply to commercial sites, but that's so broadly defined that basically any entity that is a business entity, even if it's not making money from the porn, will have to comply. So it does impose a burden. But second, more importantly, I think,

is I don't know how websites are supposed to prove compliance if you're not allowed to store any kind of data. Because if you can't store identifying data and somebody says, well, I was able to get on and you didn't verify my age. And they say, here's a record saying, with a checkbox saying, yes, we verified. Is that going to be good enough for a state attorney general? I would assume not. But otherwise, how are they supposed to prove it if they can't actually trace back the person to the access?

It doesn't, like, logically, it doesn't make sense to me. So I don't think that the chilling effect on adults is lessened from when it was even, you know, back in the late 90s, early aughts. I think it's more. All right. about this conversation to me and why I was so keen to have you on the podcast is because we're not actually that far apart when you sort of go down the doctrinal Plinko game here. But I want to back up a little bit to like some first principle stuff. So for instance, we both agree that this is First Amendment protected, which not everyone does. But here on this podcast, everyone here agrees

there is some First Amendment protection here. In this home. I don't know if I want to put that sign up front. In this home, we acknowledge that pornography is protected by the First Amendment. David, not at your home, especially. No, no, definitely not. Okay. Talk about chilling effect. I mean, my gosh.

So there, from there, therefore, we both agree that strict scrutiny would apply and therefore that you have to have a compelling government interest that is narrowly tailored. We've talked a lot about secondary effects, and I think it's what makes you sort of a fun expert on this, because we have not talked about secondary effects a lot on this podcast. And I wanted people to get to hear a lot about it. But I want to back up to compelling government interest that is narrowly tailored because I wonder how much we disagree even in that sort of like second check box. And let me make my case to you. And then you tell me where you disagree.

Because I know you disagree on narrow tailoring. That in fact, it is a compelling government interest. Some of these lawsuits that have been brought have made bad cases for compelling government interest. And I want to make the good case that I haven't seen any of them make yet. I don't know why they're not making them. Again, why is everyone not listening to me all the time to fix the world? It's really hard to say. Sarah, I'm doing my best to change that. Thank you.

Thank you. Yeah. So to me, the compelling government interest is that we have now a lot of information on the addictiveness side of this when it comes to children, frontal lobe issues, et cetera. And in the same way that, you know, cigarettes or other drugs are addictive, we actually, I think, have more evidence that some of the algorithms used by social media, et cetera, are, and I'm broadening this beyond pornography, obviously, for this conversation, are in fact really, really addictive. Okay. So there's the compelling government interest is

preventing minors from accessing addictive properties before they're adults. Adults get to choose to smoke cigarettes, basically, even though they're addictive. But we don't let minors make that decision because they can't stop making the decision, so to speak, basically. They're too young. And then on the narrow tailoring, if you simply had a magic wand to say that minors can't access this stuff until they are of age because of its addictive qualities, I wonder whether you agree that that is narrow tailoring or in fact, that still wouldn't be narrow tailoring. Like is your pushback on the narrow tailoring logistical, which I acknowledge you've made a very good case for,

or is it, you know, first principles, it's not narrowly tailored. Go. Well, you gave me a lot to work with here. I'm going to start with the you know broader than porn stuff uh because it's actually something i've been thinking and talking a lot about because you've seen a lot of bills trying to regulate social media for its addictive qualities or what have you broader than porn by the way is the name of our band that we'll be

starting i got the guitars behind you let's go go. First of all, I'm not convinced that the literature is there yet. I think that the studies are vastly, reach vastly different conclusions. But even if they were there, my answer might be, so what? The entire purpose of any media enterprise is to keep people engaged and to keep them coming back for more.

That's why certain things are continued below the fold or on page A6 or what have you. That's why there are cliffhangers at the ends of episodes or seasons of TV shows. The entire point of media is to keep eyeballs. I think framing the consuming of ideas as addiction is both giving short shrift to actual chemical dependencies that can arise from the use of physical substances, while simultaneously giving the government absurdly broad power to basically say, well, we think you've had quite enough of those particular ideas. Damn it. He's right. Bridgerton is addictive. Bridgerton is addictive. No, I'm going to, the literature is not there yet on that.

I'm with David on here. You're outnumbered. So, you know, as a general matter, I am very skeptical of that argument. And I guess also the fact is that even if it is, you know, you are trying to get kids to come back for more, kids have first Amendment rights too. They might not have a First Amendment right to look at porn, but they basically have, especially as they get to their older teens, First Amendment rights that come close to coextensive with those of adults. And there are very limited situations in which the government has the ability to regulate speech to or from minors more than it could adults. And those almost always include one or both of schools and sex.

So, you know, as a general proposition, I don't think that works when you get down to porn i think you know we might be somewhat close in one sense and that is the cases seem to almost unanimously accept and assume that there is a compelling government interest in protecting the physical and psychological well-being of kids, and that porn is a threat to it. And maybe that's a lot of times because it's not really challenged. Nobody really wants to challenge that government interest is existing. It feels kind of gross. I'm sure there's some 15-year-old boys that would be on board, though. I'm going to stake out at what might be a controversial opinion. And it's not to say I don't think this government interest exists or is compelling, but I think the government ought

to have to prove it. And with respect to each type of legislation or regulation they propose, and you see this in cases outside of porn. For example, in Brown versus Entertainment Merchants Association, a case about California banning the sale of violent video games to minors, the Supreme Court was not impressed with the studies that California used to prove the harm that they claim these games cause to minors. was entitled to choose sides in a heated debate between medical and psychological professionals and legislate accordingly. And the court said, sure, maybe if this was a case under intermediate scrutiny where the burden on the government to show their interest is a lot lower, but here, where it's a content-based regulation, you need more than that to establish that causal link. And on porn, I think like the rest of things, the literature seems to be kind of all over the place.

Every study that purports to find some harm is rebutted by two finding that harm to be illusory and vice versa. I can't give you the answer to who's right because I don't know anything about it. And so while I have doubts that there is anything conclusive enough that it would satisfy strict scrutiny's demand for a compelling government interest, or at least in any other area of speech, maybe there is. But I just think the government should have to prove it. And maybe for sex-related speech, it's just presumed, but nobody has said that outright. And I'm not entirely sure I think that's how it should work, especially when regulations also impact the rights of adults.

I think at the bottom of it all, my position is this. If courts are going to make special rules about sexual-related materials, at the very least, they ought to be explicit about it. No pun intended. The words came out of my mouth and I immediately realized what I had done. So that's my thought on the compelling interest. So two quick things. One, just want to say hi, mom, because she listens to the podcast. things. One, just want to say hi, mom, because she listens to the podcast. And I don't know if we've ever had this long of a discussion of pornography before on advisory opinions. So that's one. The other is, I think, you know, when you're talking about things like video games or other kinds of speech, well, I don't, what we had, the difference I see is we very clearly have a lot of

doctrine that basically it's very clear that there is no constitutional right on the part of minors to get this information. There's just, it doesn't exist. And so to me, one of the flash points, it seems between us is you and I both agree there is no constitutional right to receive this information. It seems to me where we have our disagreement is how much of a burden are you willing to place on adults to prevent kids from viewing something that they have no right to view? kids from viewing something that they have no right to view. Now, I think we would totally agree that under existing case law, the burden you place on adults cannot be total. In other words, you can't say, well, because there's no way to prevent leakage sort of from the adult world to the child world, therefore we're going to ban it for everybody. It's just not going to fly.

But we have seen examples in the offline world where inconveniences for adults are not at all an impediment to passing laws that block access for minors or inhibit. There's all kinds of creative ways people get around these restrictions, but they don't prohibit reasonable regulations aimed at preventing, prohibiting access to minors. And so I think that, I think if I had to nail down our difference is I would, I am more tolerate tolerant of inconvenience for adults than, than you might be. Um, and how much is inconvenience, because this is the key thing for me, how much is inconvenience going to be a real factor in the legal analysis here?

And I totally get it from 1990s era internet, the idea of age gating and the kinds of secure communications that we take for granted now just really didn't exist in the 1990s. It's just a different technological environment. And I guess I'm unconvinced that secure access, secure ID requirements are too much of an inconvenience.

They're too invasive to the privacy of adults. Because, hey, going back to the offline world, I grew up in a small town. And it would fly through our high school whose dad was seen leaving the adult section of the local video store. Hey, Ben's dad. I saw Ben's dad coming out. And these kinds of public, you very publicly went into as an adult and to an adult bookstore.

You very publicly as an adult went into a strip club or whatever. Heck, there would, one of the, you know, there would be friends of friends who are like bouncers at these clubs and they'd be like, you wouldn't believe who came in here. And so, you know, there's always been, when you have this sort of offline world,

there's always, there's never been this sort of guaranteed anonymity of use of adult entertainment. And so to sort of say in the online world, unless you can have absolute guaranteed anonymity, we're going to somehow see a violation of your constitutional rights. To me, I'm not so sure about the doctrine there. I'm not so sure that the Supreme Court's going to buy into this idea that in the online world, there's sort of an interest in anonymity greater than that exists in the offline world, where the anonymity of access to adult entertainment is nil.

It's nil. I think you're right that there's no guarantee of anonymity. I'm not sure that I would say that there has to be a guarantee of absolute anonymity. I don't think I go that far. That being said, I think there's two distinctions from the offline world. And that is one, to lose that anonymity, somebody has to be there at the right time, at the right place to see.

Now, granted, you know, the world's a big place and there's always someone somewhere everywhere. But it's a much lower likelihood. And I think when you combine that with the permanent, basically indestructible and easily sellable records that are created about what we do online in this day and age, and maybe they'll come back to me and say, well, those trackers are tracking people when they go to the porn sites with or without age verification. So how much are they really worried about? And that might be a fair argument. But to me, it's what are we willing to tolerate from the government is, I think, the inconvenience.

I would say it's more than, it transfers something from being an inconvenience to being more of an impediment. And I think, you know, we are not worlds apart, but maybe just a little Great Lake or something apart. Great Lakes are pretty big. You wouldn't believe the number of people who visit me from New York and surprise that Lake Michigan is bigger than a retention pond. It is an impressive, Lake Michigan is an impressive site, I will say. So, you know, I totally, I get the distinctions you're trying to make and the position you're staking out.

I don't think that it's an unreasonable one. I'm just not sure I agree. All right. You know what? Which is fair. Which is fair. You don't have to agree. That's a great place to leave this on this podcast.

I love, I love leaving it. You didn't even let me get to narrow tailoring. My goodness, Sarah. All right, all right. Some narrow tailoring. You get to do a little narrow tailoring. I think the couple of things I would say about narrow tailoring is that, you know, included in that is it has to be the least restrictive means.

And I don't think age verification is any more reliable today than it was in 1999. I think that uploading a government ID is the same exact thing as putting in a credit card number. It says nothing about the person uploading it. Could be anyone. On the internet, no one knows you're a dog. And the selfie verification, you Google trick selfie verification, and there's like hundreds of results for links to like free software with instructions that any 14 year old could easily follow in this day and age. I'm just I'm not sure that the technology is there. So this is all the logistical side, which I accept.

The logistical side may not be there. all the logistical side, which I accept. The logistical side may not be there. And it sounds like you also, though, maybe don't agree on even the first principle side that minors, meaning under 18, is narrow-tailored enough. I don't, and here is why. It might not be for the reason you think. And this kind of goes back to a more first principle obscenity doctrine concept in the first place. These laws all, for the most part, track the Miller test somewhat, at least. And one of those prongs is that the material has to lack serious artistic, political, whatever value as to minors. What does that mean? Which minors? What what age because what has value for a 17 year old is far different than what might have political literary whatever value for a 12 year old and this is one of the things that the courts found wrong with copa is that it treats minors as a monolith,

and as a result, basically forces providers to guess as to what is appropriate for anyone on that age range, and maybe we'll just make it for the lowest age part to be safe. I get it. Porn is much more clear-cut than that. But it's just something that I noted. And I also don't think that it's the least restrictive means. Parental filtering tools are as available and as advanced as ever. And those are the same things that the court considered less restrictive alternatives in the lawsuits over COPA.

And the one thing I hear is, well, kids can get around them and they know how to get around them more than anything. And to those people's credit, the Third Circuit did note in the early 2000s that parental filtering tools are very hard to circumvent. First of all, that wasn't true back then, and it's certainly not true anymore if it was. So point to the other side for that. But here's my rebuttal. If parental controls are not effective, why would easily circumventable age verification be? And this cuts both ways because if it's not going to be any more effective, then it's not narrowly tailored to the least restrictive means. It just, it fails on that ground alone. So I'm not sure how you actually get to the tailoring that's required.

And somebody out there probably more creative than me can come up with a way, but that's their job, not mine. You know, and it's the whole idea that, well, you know, filtering tools exist and, you know, the government needs to do more because it's not working, it doesn't matter from a constitutional standpoint. The only thing the courts care about, because the government tried that argument with COPPA, they said, well, filtering is the status quo and clearly we need to do more. And the court said, are you kidding? That could basically justify any regulation because, well, we just don't think the status quo is enough.

So, you know, I'll leave it off saying maybe the courts are going to make special rules for porn. And maybe you think they should. Maybe you don't. I just think that it needs to be doctrinally very clear because this bleeds over into other areas so easily. And I don't think they should make special rules. That's my prior, is I think this is a parenting issue. But if they're going to, it's got to be clear so it doesn't muck up the rest of the First Amendment. With that, thank you, Ari Cohn, for joining us today.

What a fun, special advisory opinion porn episode. This has been a trip. Thank you so much for having me. Yeah, really appreciate it, Ari. Thank you very much for coming. My pleasure. David, that was fun. I know you're curious how the audience is going to react to it.

What's your prediction? Yeah, I am very curious how, because I think we have a, I think our listeners, like us, are very, very pro First Amendment, pro free speech, that sort of the culture of advisory opinions is very pro free speech. I think my prediction is that our listener reaction will weigh more sort of more towards our position on this, because I think it really does. As I said before, you get down to this reality of bifurcated rights that kids do not have it, this right to access pornography and adults do. And so therefore, if there is this bifurcation, the bifurcation exists for a reason, by the way. So it's not that it's just sort of like, no, arbitrary, you know, whatever. No, it's because there is an understanding of harm to minors. Are you going to inconvenience adults to vindicate the legal interest in protecting minors? And I think that that's really where, when push comes to shove, where we have the difference is how much of an inconvenience do you want to place on adults to fulfill the interest in protecting minors? And I agree that anything you do can have some creative ways of circumvented.

I mean, the physical ID requirement that people have when they walk into an adult bookstore or whatever can be circumvented by a fake ID. And fake IDs are not super hard to find. I think in this regard is if you're talking about a very moderate inconvenience while you're vindicating the legally protected, the legally recognized interest in protecting minors from pornography, it feels to me that that's the right balance. But I don't know. What do you think, Sarah? Yeah, I mean, I think he doesn't necessarily agree on the total bifurcation. He sees it more as a ramp.

You see it more as black and white cookie. Yeah. I think that's a good difference. And I recognize that a nine-year-old and a 17-year-old are not the same. I know you know they're different. I'm wondering if you think they're different with respect to pornography. Right. But I would say, so the law has to draw, that the law can draw lines. And in all kinds of ways ways we see the law draw a very sharp distinction between ages that 18 years old is suddenly fundamentally legally different from 17 years and 364 days even though nothing magic happens overnight on the 365th day. This is just how we have to draw lines when you're talking about age. So I,

I think that, that, that the, the line drawing aspect of it, I think is completely legally defensible. Um, even though there is a difference between a 17 year old and a nine year old, obviously.

Uh, but I, I agree with you. I think that would be one of the distinctions is that he doesn't necessarily agree with the total bifurcation. That was fun. Yeah. All right.

Well, thank you, AO listeners. We'll see you in the comments section. If you're not a Dispatch member, you can become one for $10 a month and hop in the comments section and let us know all your thoughts on porn and definitely put it on the internet so that people can access that.

I should note that you do not have to post under your real name. It's true. It's true, though. You know, just be cognizant of all of that. But we know. Bye. you