Terry Schilling of the American Principles Project notes that the Supremes “did not strike down all obscenity laws in Reno v. ACLU.” Nor did they “overturn existing precedent recognizing the government’s interest in defending minors from both obscene and non-obscene ‘indecent’ material.”
Which means it’s still possible to restrict access. Schilling suggests requiring Internet service providers to create opt-in systems, whereby the default version of the Web is porn-free, with adults permitted to request the unfiltered version. Another possibility: corralling all porn into an adult “zone” that requires age verification to enter, while banning it everywhere else.
Would any of this flout constitutional “originalism”? “Real originalists,” as Harvard Law School’s Adrian Vermeule quipped recently, “uphold obscenity convictions under the common-law rule,” the broad definition that prevailed for most of the nation’s history: Obscenity is any material with a tendency to “deprave and corrupt the morals of those whose minds are open to such influence.”
Join the conversation as a VIP Member