Judge not, Judge Alito.
The conservative Supreme Court justice raised eyebrows Wednesday when he pointedly wondered aloud during oral arguments whether smut site Pornhub carries cultural content similar to “the old Playboy magazine.”
The high court is hearing a challenge to a Texas law mandating that adult sites verify the age of their users, with an industry group arguing the requirement violates the First Amendment.
“One of the parties here is the owner of Pornhub,” Alito, 74, asked attorney Derek Shaffer, representing the plaintiffs. “What percentage of the material on that is not obscene as to children?”
After Shaffer acknowledged that to “the youngest minors … most of it is” obscene, Alito went a step further.
“But is it like the old Playboy magazine? You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?” Alito interjected to audible laughs, recalling the longstanding joke about men buying Hugh Hefner’s venerable title “for the articles.”
“Not in that sense,” Shaffer admitted, “but in the sense [that] you have sexual wellness posts about women recovering from hysterectomies and how they can enjoy sex. That’s on there. Discussions of age verification proposals and where the industry lines up as far as what they think should be legislated and what should not.”
Texas passed the law in 2023 and it specifically applies to companies where over one-third of the content is considered detrimental to minors. The measure stipulates that websites take “reasonable” age verification steps and levies a $ 1,000-a-day penalty on violators.
The Lone Star State law was recently upheld by the New Orleans-based Fifth Circuit Court of Appeals, which ruled that governments have a compelling interest in preventing youngsters from viewing porn.
Prior to Alito’s grilling, fellow conservative Justice Neil Gorsuch grilled Shaffer about the percentage of his clients’ material that “would be considered obscene for minors.”
Shaffer demurred, arguing that “it’s tough to arrive at that calculation” before later suggesting that at least 70% of the content in question was inappropriate for kids.
At another point during oral arguments, Alito scoffed at Shaffer’s suggestion that parents be more proactive in monitoring and restricting their children’s online habits.
“Do you know a lot of parents who are more tech-savvy than their 15-year-old children?” the justice shot back.
The case, Free Speech Coalition, Inc. v. Paxton, will be decided sometime before the end of June.
