I Know It When I See It: Free Speech and Obscenity Laws

Eugene Volokh: Hello, and welcome to free Speech Unmuted, the Hoover Institution podcast on free speech. I'm one of your co hosts, Eugene Volokh. I'm the Thomas M Siebel senior fellow at the Hoover Institution, and I just retired from 30 years of teaching at UCLA Law School, where I was Gary T Schwartz professor of law, and now I'm doing full time research here at Hoover.

Jane Bambauer: Congratulations, Eugene. I'm Jane Bambauer at the University of Florida, and I see you're in your new offices, it looks like. But we're here today to talk about pornography, in part because it's a hot topic generally, and we haven't really discussed the first history of it. And then also because it's the one case so far that the Supreme Court has granted Cert on has to do with an interesting Texas law that tries to regulate online pornography.

So, Eugene, why don't you tell us a bit about the historical or even the legal historical background here. How has the first Amendment dealt with pornography?

Eugene Volokh: Well, the answer is it's complicated. There are several legal rules that the Supreme Court has set forth, or in one instance so far, it's only lower courts that have set them forth.

One of them, which is pretty well known, is the child pornography exception. And that involves pornography to oversimplify, basically, sexually explicit depictions that involve real children. The concern there is the harm to the children whose images were used in making the material, both the harm during the making of it and the harm later on, and that there are particular legal rules with regard to that.

They're relatively well settled, and they were first developed in 1982, but they've been adapted pretty smoothly to the Internet, just as, unfortunately, the child pornography market has also adapted, unsurprisingly, to the Internet. But that's not what we're gonna be talking about today, although we'll be talking about pornography and children, but not child pornography.

Important to distinguish that. Then there's the so called obscenity exception. Now, these aren't obscenities in the sense of vulgarities. This is obscenity, which basically means hardcore pornography. And there is this, in 1973, the Supreme Court, after decade and a half of struggle, set forth this test that, at least ostensibly is the law today.

That material that basically is pornographic in that it depicts, in some measure, sex, again, I oversimplify here, can be criminally punished. At least its distribution can be criminally punished if it is patently offensive under contemporary community standards, if it appeals to a prurient interest in sex. What's prurient?

Well, that's a shameful or morbid interest in sex as opposed to healthy interest in sex, go figure that one out. Well, in theory, courts need to figure it out. And then the third prong is that it lacks serious scientific, literary, artistic or political value. If all three prongs are satisfied, then in principle, its distribution can be prohibited.

Now, the fact is that the war on porn is over and porn has won, so that people say, well, how is this consistent with the fact that there's all of this hard, hard, hardcore porn on the Internet? The answer is it's really very rare for there to be prosecutions unless there's something special going on.

Like, for example, sometimes there's material that's not child pornography because it doesn't depict real children, but that it is pornography about sort of sexual abuse of fictional, kind of, let's say, computer generated children, or sometimes even just text. And sometimes prosecutors think that that's particularly dangerous, maybe because in theory it whets the appetite of would be child molesters, and so they prosecute that.

But it's really very rare. So that test also is, at least in theory, applicable to the Internet. But again, in practice, as opposed to child pornography law, which is pretty substantially enforced, it is pretty rarely enforced absent something special. We're gonna get that what that something special might be in cases such as this one.

Now, note the concern in child pornography recall had to do with harm to the children who are actually depicted. Concern and obscenity is sort of, it is the harm to the morals of the people who are viewing the material. And indirectly, therefore, the theory goes, if they view more porn, maybe they'll want to act it out.

If they view violent porn, maybe they'll want to rape people. If they view porn, that may make it more likely that they'll cheat on their spouses or spread sexually trans, or have more sex in a way that spreads sexually transmitted diseases and such. That's quite controversial. You could also tell a plausible story that people are just sitting at home watching porn.

Well, they're not gonna be going out there and having lots of extra sex, maybe it's a substitute to them. Even if they say, we're watching violent porn, maybe it's a substitute to them for violent sex.

Jane Bambauer: And by the way, there's some reason to think that that's how it works, because with violent video games, there's more and more evidence accumulating that's exactly what happens, is that those teenagers most likely to get into trouble are.

This is not great either but they're isolated at home, out in the world, but they are playing video games.

Eugene Volokh: Right, and there were studies and query how accurate they are that tried to use the natural experiment of different countries adopting broadband Internet at different times. And it claimed that the adoption of broadband through all these countries coincided with apparent substantial declines in sex crimes.

Jane Bambauer: Right.

Eugene Volokh: And the theory is, again, people are in their homes, they're taking care of themselves. Nobody needs to worry that much about it. And of course, just one way of thinking about it is a lot of people like to read books about pirates and watch movies about pirates, and they may be fantasizing, what would it be like if I were a pirate?

But we don't really worry about them becoming pirates because they can distinguish, people distinguish fantasy from reality. So those are plausible theories. The court has never resolved which one is accurate as a matter of social science, but has said for historical reasons, there's always been this exception for hardcore pornography from free speech protections, or at least for pornography from free speech protection.

And in the Miller test, it set up this three pronged test, which is fairly speech protective, although leaves open, at least theoretically, room for punishment. And that was sort of its compromise, in part with history. Jane, what do you think?

Jane Bambauer: So the theory of why obscenity gets sort of special treatment in the sense of being an exception to the usual protections of the First Amendment.

One of them is the one you explained, that we're worried about these, the impact that these prurient ideas will have on people. And so in that sense, it's speech, but it's a special, it's a sort of narrow category of speech where we don't like the influence that and maybe it works similarly to the way we think about incitement and defamation and stuff like that.

But then another theory is that it is in some sense not expressive, or at least, I think. I think one reason that the Miller test, well, one reason, yeah. So another theory is that it somehow has some connection straight to the sort of physiology or the physical responses of the body.

And I've heard at least some law professors have focused on that as well, although I don't think that that can explain fully the Miller test. But it's really kind of remarkable how the Internet has changed the standards, or at least the expectations of pornography. Because when I teach these cases, I use an example from a case from 1999, which we can think of as like, right at the brink, right before the Internet had its sort of full penetration, pardon the pun, into the household.

And we looked at this case from the Nebraska Supreme Court. Someone who had a cable access check, had a part of some longer TV piece where a clown is out in space masturbating. And that was found to be obscenity. It was found to have actually met the Miller test of no legitimate scientific or literary or artistic reason to be viewing it and to prurient.

And today, geez, I think that would easily fall into a PG13 movie. So the Internet has really sort of, there has been an effect, I think, on expectations in society. And so it's not surprising, I think we're gonna get waves of concern. I think this is going to be a cycle we'll see over and over again, which is not surprising that this is coming to the fore again.

Okay, so that's obscenity.

Eugene Volokh: So right, so we have now child pornography and obscenity. There are three other documents, then it's the third one that is now before the US Supreme Court. So first, let's talk about zoning restrictions on bookstores, adult bookstores and movie theaters back when there were such things.

There probably still are, but my sense is that they're much less significant today than they were before. Somebody once labeled it, I think it may have been Lauren Strive, the great constitutional law scholar, erogenous zoning.

Jane Bambauer: Yes.

Eugene Volokh: And the Supreme Court has upheld some such restrictions on the theory that they're content neutral, even though, of course, they target speech of a particular content.

But it's content neutral because it targets the secondary effects of speech. Not that the speech is offensive or might cause people to do harmful things, but that it attracts a bad sort of people. I'm a little skeptical about that because that's still a content based effect. It attracts certain people because of its content.

But in any event, we can set that aside, those are significant conceptually and sometimes practically. But part of the premise is this just indicates where these places can be located. It still leaves the material, so long as it's not child pornography and not punishable obscenity, leaves it protected.

Now, another category which the Supreme Court has never resolved, but at some point might need to, has to do with so called revenge porn. Non consensual porn depictions, whether for revenge or not, pictures of people having sex or just people naked that are being distributed without their permission.

And the related problem of deepfakes porn, which is not real photos, but photos that are created to look like it, could be look like a movie star, could be look like your ex, could be look like a neighbor or coworker or whatever else. And those involved a special problem which did not arise, which in a sense does arise with regard to child pornhood, but does not arise with regard to ordinary obscenity.

Which is that the subject is not consenting, that sometimes the one defense of pornography is, hey, it's consenting adults. Why should the government intervene? I think quite a plausible defense, but here the person depicted is not consenting. Most courts that have considered it have said, yes, restrictions aimed at preventing this kind of non consensual porn are constitutionally permissible.

I think the same thing will end up applying to deepfakes porn.

Jane Bambauer: So, just to be clear, it's not because it's a special category of unprotected speech, though, I take it, it's sort of a species of privacy law that manages to, is that true? I'm actually not sure.

Eugene Volokh: Well, so it's complicated. You can imagine three kinds of defenses. One is this would be normally fully protected speech outside any exception. But even that kind of speech can be restricted. The restriction is narrowly tailored to a compelling government interest. That's the so called strict scrutiny test.

And some courts have said there's a compelling interest in protecting privacy. And this restriction is narrowly tailored, protecting privacy against these sexual depictions. Depictions of people without their permission in non sexual contexts are fairly commonplace. There are any time the media photographs, a perp walk, let's say, when somebody who's been arrested is being displayed out in public, that's not consensual, but that's constitutionally protected.

So that's one theory. A second possible theory is that there is kind of an invasion of privacy exception to the First Amendment. It's very, very narrow, a lot of things that we think are privacy invasive are nonetheless constitutionally protected. But certain kinds of things, maybe disclosure of very, very private facts, but in particular, disclosure of how you look, or even not necessarily disclosure, with deepfakes it's not showing how you actually look.

It's fictionalized, but it's kind of representing how you look naked or when having sex. That fits within this historical privacy exception, that's a possibility.

Jane Bambauer: Has any court actually made a determination on that basis?

Eugene Volokh: So as I recall, all the court decisions that I've read have focused on the strict scrutiny analysis.

But since the compelling interest there is protecting privacy, one way of thinking about it might be that what there really is going on is they're recognizing that speech that invades privacy should be its own special category. And then there's the third theory, which I actually think may make the most sense, but courts are not accepted.

We'll see if the Supreme Court at some point does. And that has to do with this obscenity exception. I'm not a fan of the obscenity exception. I think that it may make sense for the court to say, look, when it comes to consenting adults, there should be no restrictions permissible.

Child pornography is separate cuz it's not consenting adults. But for consenting adults, that speech should be constitutionally protected, in part. Because if you think of the Miller test, patently offensive, appeals to a shameful or morbid as opposed to normal and healthy interest in sex.

Eugene Volokh: As a general matter, First Amendment law doesn't tolerate these kinds of vague, subjective rules.

So I generally am skeptical about the obscenity test. But I do think that once you relax kind of this assertion of consenting adults, the whole premise of the obscenity exception is sex is different. Depictions of sex are different, whether because they appeal to a different portion of our brain, or because of history and tradition or some mix of that, they are different.

And it may make sense to adapt the obscenity test to be less speech protective. To apply even to speech that may have serious artistic value or that doesn't appeal to a prurient interest or whatever else. But to apply it in a less speech protective way when you have non consent.

Jane Bambauer: Non consenting subjects, okay.

Eugene Volokh: So this actually is a nice segue. To the last doctrine, which has to do with obscenities to minor. And that's the one which the Supreme Court is gonna be considering. So in a case called Ginsberg v New York in 1968, I oversimplified here.

But basically, the Supreme Court said that obscenity involves potentially a variable standard, that you've got one standard for just normal obscenity cases. That was before the Miller test. But today, it would be this three-pronged Miller standardization. But there may be a different standard if certain situations, certain features of the case are different, such as the distribution to children.

So my thinking is, if you've got the depiction of someone who's not a consenting adult, maybe the requirements should be relaxed. Well, the court has said that when it's distribution to somebody who's not a consenting adult, or at least who's not an adult at all, the rules can be changed.

And basically, again, I oversimplify here because Ginsberg was a 1968 case, Miller v California, which set up this three-pronged test, came five years later. But basically, in light of those two cases, it's been understood that the government can restrict the distribution to minors of material that is patently offensive depictions of sex when shown to minors.

That's what patently offensive by community standards, that appeals to the pronged and interest in sex of minors and lacks serious value to minors. And by the way, in theory at least, although query how you actually practically apply it, you could have truly variable standard with different standard for 7-year-olds, for 8-year-olds, for 16-year-olds, for 17-year-olds, and such.

So that's an established rule from this Ginsberg case. And the assumption has long been that you've got the obscenity test for speech distributed to minors. But states can have less restrictive tests, excuse me, less protective tests, more restrictive tests as the speech distributed to minors. So basically it's this test for adults with two minors added to each point.

Now, let's just step back a bit. How is this implemented in laws in the past? It's basically that stores are held responsible if they distribute the material to minors. And one way they can avoid being criminally punished is by taking reasonable steps to make sure that the recipients aren't minors.

So Ginsberg talked about the rights of minors, didn't talk about the interests of adults, but it's clear that a law like that would interfere with the rights of adults. So first of all, young-looking adults, ones who may be 18 or 19, and somebody might say, I don't know if you're 16 or 17 instead.

Young-looking adults would have to show their IDs, and they would have to have IDs. Not everybody does have IDs. And especially back in the late 60s, fewer people probably had IDs. So that interfered with their privacy rights. And relatedly, now, somebody who looks really adult, somebody like me, presumably we wouldn't get carted if we go to porn stores, but only because they could look at our faces.

Let's say we really did wanna protect our privacy by wearing a mask that concealed our face. At that point, the store owner might say, okay, I do need to see your face and your ID now, because, I don't know, maybe you are somebody who's young. It's only looking at my face and therefore compromising my privacy in some measure that allows the store to avoid having to cart me.

So in 1968, the Supreme Court in Ginsberg v New York upholds this kind of law. Then in 2004, in a case called Ashcroft v ACLU 2, it was the second case with that name that came before the court. The court strikes down a ban on distributing material that's obscene as to minors, to minors on the Internet.

And it says, well, we need to apply this strict scrutiny test, this narrow tailoring to compelling interest test. And we conclude that the law is not narrowly tailored for various reasons, one of which is filtering. Having parents put filtering software on their computers is a less restrictive alternative.

It's less intrusive on speech to adults. But in the process, majority just doesn't mention Ginsberg. So we've got these two precedents that are on the same subject, although one was of the pre-Internet era, one's the post-Internet era. And now the question's what to do with them, and I'll talk a bit more about that.

But, Jane, you.

Jane Bambauer: Yeah, well, so in between them, though, wasn't there the Dial-a-Porn case, is that Sable?

Eugene Volokh: Right.

Jane Bambauer: So my understanding was that that kind of helped constrain Ginsberg quite a bit. So can you remind me and the audience, yeah, what happens in both the telephone and cable context?

Eugene Volokh: Well, back in the primitive days, before the glories of technology that we now experience, people who wanted to get porn from their homes had to call someone on the phone and have them talk about sex to them. Apparently, lots of people were into it. There was a concern that children were going to be able to access pornography this way.

And therefore, there was a statute enacted that banned indecent telephone messages, which basically wasn't quite the obscenities to minors test. It was actually broader than that potentially.

Jane Bambauer: That was the problem one.

Eugene Volokh: And the Supreme Court said, well, that interferes too much with the rights of adult recipients, because adults wouldn't be able to get Dial-a-Porn at all.

But what it said was the less restrictive alternatives that were available were things that actually would impose some burden on adults, but just a lesser burden on adults.

Jane Bambauer: Okay.

Eugene Volokh: So the court was endorsing the proposition that some burdens on adults, requiring them to specifically ask that porn be unblocked perhaps.

Or requiring them to provide a credit card, things that really might interfere in some measure with their privacy and their convenience, would be permissible in order to shield children. Now, note, at the time, there wasn't this alternative of just people installing filters on their phones the way that there is now, people installing filters on their home computers.

So the court didn't really consider that. But, yes, Sable Communications is a case that I think does more for the government in supporting the notion that some burdens are constitutionally permissible in order to shield children.

Jane Bambauer: I agree, so it really does boil down to the Internet case versus Ginsberg, the Ashcroft case versus Ginsberg.

Eugene Volokh: Right.

Jane Bambauer: Okay.

Eugene Volokh: So this is what happened. Texas and some other states, I think, as well, but Texas in particular enacted a law that basically requires online operations, commercial operations that have at least, I think, was a third of their material, that is pornography. They have to basically implement age.

Verification and what kind of age verification? Well, it's not completely certain what they would end up doing, but basically, the options seem to be that you could have people show an ID. So in principle, take out your driver's license, and then some person, or more likely, some AI algorithm, kinda compares your image to the driver's license.

Or some other verification mechanisms, including, at least according to the court, the court's interpretation, the Fifth Circuit's interpretation of the law is that it may include visual determinations. There are algorithms that do a pretty decent job of looking at a picture and deciding, is this person an adult or a minor?

And presumably, if it's borderline, they say, we estimate this person's age is 17 or 18, maybe at that point they'd have to show an ID. But for most adults, that algorithm may make it unnecessary. If it's available, and as best I can tell it, probably is and is implemented by the site.

That may make it unnecessary to check, say, a driver's license or some such. So the district court says this is unconstitutional, see Ashcroft, the ACLU two, that 2004 case, and the Fifth Circuit panel splits two to one. The dissenter says the same thing that the district court did, basically, and the two judge majority says Ginsburg v New York is still on the books.

It's still good law Ashcroft v ACLU two never overruled it. It didn't even discuss it. And the panel's theory is that the parties seem to agree that the strict scrutiny test applied in Ashcraft v ACLU two. So all the court said was under strict scrutiny, this is constitutionally impermissible.

But it didn't consider the other argument, that it's maybe permissible under Ginsburg. Now, whether that's the right way for lower courts to treat Supreme Court precedent that seems to be kinda factually on point is an interesting question. I mean, I think there are plausible arguments for and against.

But the important thing is now it's before the US Supreme Court, and it has these two precedents, right? It's got Ginsburg pre Internet precedent, but one that reflected the practice from an era when the justices were growing up. When I was growing up, it sort of understood, yeah, of course.

If kids go to stores to try to buy porn, the store should block them by carting them, just like we already do with regard to constitutionally unprotected material, such as alcohol and tobacco, and constitutionally protected materials such as guns, right? Stores have to check people's IDs in order to transfer guns to them, even adults.

So in any event, so there's that precedent, but it's from the pre Internet era. And then there is Ashcroft ACLU two, which is from the Internet era and seems to be quite on point. But does seem to kind of be in tension with how things were done throughout much of the history of porn being fairly broadly available in the US up until the Internet.

So that's the question that the Supreme Court's gonna decide. What do you think?

Jane Bambauer: Okay, yeah, well, actually, I think it's a harder case than I had fully realized before talking with you, so I'm glad we went through it. And so that means that the Supreme Court, to some extent, has some degrees of freedom to decide what they want to and then rationalize afterwards, that said.

Eugene Volokh: Man is not a reasoning animal, he is a rationalizing animal.

Jane Bambauer: That is right.

Eugene Volokh: Robert Heinlein.

Jane Bambauer: Yeah, and then the smarter you are, the easier it is to rationalize.

Eugene Volokh: Exactly.

Jane Bambauer: That said, my sense is that they would still want to go with the Internet era precedent, notwithstanding the legitimate explanation that the parties had not actually contested the level of scrutiny.

So that's interesting, but I wondered about the other line of First Amendment law that we haven't talked about that naturally comes to my mind, even though it doesn't get litigated this way, is the anonymous speech line of cases. So, like McIntyre.

Eugene Volokh: Right.

Jane Bambauer: So the First Amendment has at least the Supreme Court in some circumstances has interpreted it to mean a right to anonymously speak.

And it seems to me that a lot of the logic should also go to anonymous access.

Eugene Volokh: Absolutely.

Jane Bambauer: Right, and that is distinct from the second Amendment and from other goods that we. But I don't see this being discussed in this case, but I just wonder why maybe part of it.

Well, yeah, no, I don't really even have a theory, but it does seem that the precise nature of the burden on adults, given that, I think most of it boils down to this privacy one, this forced of forcing yourself to identify yourself, seems to be the main one.

It's not just kind of friction and cost, it's this being associated with this particular content, right? I've been surprised at how little attention there is to the anonymous speech cases, and I'm wondering if you agree.

Eugene Volokh: Right, so it's true that the panel opinion, for example, doesn't discuss the leading anonymity cases like McIntyre and Tally, which generally speaking, dealing with political speech, said, there's a presumption.

Jane Bambauer: Yeah, and which I think matters too it's with speakers and.

Eugene Volokh: Right, right of speakers to receive things, excuse me.

Jane Bambauer: To say.

Eugene Volokh: To say things things anonymously. And incidentally, there is a case which involved the rights of listeners not to be anonymous as such, but not to be identified as enthusiastic recipients of speech.

That's actually a communist advocacy case Lamont v Posted Lamont.

Jane Bambauer: We talked about it.

Eugene Volokh: From 1965, and as I think we mentioned at the time, it was the first Supreme Court case striking down a federal statute on First Amendment grounds. Took all the way until 1965 for that to happen.

And one of the rationales given, sorry, the law there said that if people wanted to receive foreign communist propaganda, through the mails, they had to go to the post office and say, I'm willing to receive this. And the government justification was, hey, you know, there's no real burden on speech, everybody can still get it.

They just have to go and fill out a form. People said, I'm not sure I want to be on the list of people who have specifically asked for foreign communist propaganda. And the Supreme Court essentially said, yes. That is part of the problem with the law, is that it interferes with the rights of listeners not to be fully anonymous because with the males, you're not generally gonna be anonymous.

But not to have to identify themselves as people who seek this material out. So those are really important cases. I do think these arguments are being made in this case because part of the burden on speech, adult speech, is understood as the privacy burden, the interference.

Jane Bambauer: Yeah.

Eugene Volokh: With people knowing who they are. To be fair, Texas law does prohibit these entities from retaining this identifying information, but it doesn't prohibit them from for example, distributing them to others. And doesn't do much to the worry that people have about these entities being hacked and such.

Or somebody setting up a fake site whose whole purpose is to gather this identifying information and perhaps blackmail people and the like. So one argument that I've seen made that I think is a plausible argument is that back in the Ginsburg era, yeah, there was an intrusion on your privacy when you had to be carded at a store.

But that just had to do with the fact that if you show up at the store, people would see you in any event. And had to accept that kind of burden and they sort of figured, the story is probably gonna be relatively discreet. And even if it says, this guy was here, it's hard to prove.

Whereas with the Internet, if your image is.

Jane Bambauer: It's just not necessary.

Eugene Volokh: Is captured, then in that case, it potentially, notwithstanding the statutory requirement, could live forever. And could get indefinitely distributed to whatever kinds of blackmail operations might be interested in that. So on the one hand, the Internet, even with laws like this, is actually a more private place than before.

You don't have to worry, as I take it, people did with adult movie theaters. Let's say they show up there, somebody sees them walking into it, let's say. But on the other hand, they may be worried about the ease of this information being captured, retained, redistributed and such.

One other thing to keep in mind, and the court hinted at that, or not even hinted at that, discussed that in Ashcroft ACLU two. If we just step back, whatever you think of the need to shield children, the bottom line is a state's law is only gonna do so much.

Among other things, there are a lot of foreign porn sites. And if American porn sites are specially burdened by a law like this, there'll be even more foreign porn sites. So if you're relying on Texas' ability to enforce this law and to deter sites from providing material to minors, that's not gonna do much to protect the children in Texas.

Really, if you wanna protect the children in Texas, you probably want to just make these filters more easily available and more robust in various ways for parents. And if that's so, then the argument from Ashcroft ACLU two goes, well, maybe that's enough.

Jane Bambauer: Then there's no reason.

Eugene Volokh: All the government should be able to do is help promote them, maybe make them available for free or whatever else, and not interfere with the interests of adults.

So those are interesting arguments about maybe the technology does change things.

Jane Bambauer: Absolutely. Yeah, I mean, I'm very sympathetic to the cause, but between the futility.

Eugene Volokh: Which cause? There are two causes.

Jane Bambauer: I mean, the cause of trying to reduce the amount of access to pornography by children.

I do think. Well, I think we've sort of discussed before that we might have some air between us in terms of our concern about the present or future ability to kind of have long term impact based on what speech sort of does to the mind or the brain.

And I don't know. I'm quite tentative on all of my Conclusions along those lines. But I'm at least open to the idea that parents, for sure, should be doing more to make sure that their children have access to good information. And are sort of steered, I don't know, toward better pastimes and maybe trying to reduce, to the extent possible, time spent on porn.

But that said, I think the state, between the futility and then also just the pretty substantial First Amendment jurisprudential burdens, I don't think the Texas law is the right vehicle.

Eugene Volokh: That makes a lot of sense, I'm also not completely sure what the right answer is. So precedentially, I think Ashcroft ACLU two, despite its not having discussed Ginsburg, seems pretty solidly on point.

On the other hand, of course, filters are not perfect in many ways. One of them is, especially when you get to teenagers, you're not gonna be constantly monitoring every home that they go to or every phone that they may borrow from to look at from a classmate. And so it may very well be that they'll just gravitate to places where there's unfiltered access.

Although, again, it may be that that concern is just dwarfed by the availability of foreign porn. So these are interesting and difficult questions. I'm hoping at least the court will give us an answer. I mean, I do think it was a mistake, one that people didn't much discuss, I think, at the time.

But I think, in retrospect, a mistake in Ashcroft v ACLU two, for the court just not to talk about Ginsburg, which was the pretty clear pre-Internet analogy. So with luck, by end of June of next year, we'll at least know what the rule is. We will, legislators will.

Jane Bambauer: All right.

Eugene Volokh: Or maybe not, or maybe they'll just pun they do that sometimes.

Jane Bambauer: They do Like making the narrowest of decisions on technical terms. Maybe there will be a standing problem, right? Just kidding.

Eugene Volokh: Who knows?

Jane Bambauer: Okay, well, always great talking to you, and hopefully we'll get to do this again in a couple weeks.

Likewise, very much look forward to it. And I hope all our viewers will tune in. Do people still say tune in? Tune in next time. That's from the dial-a-porn era, I think. No, no, no. Well, no, I mean, this is from the old analog TV dials, right? Where you had to adjust the tuner, I think.

I remember having one of those back in. Or from the radio, I thought, too, the tuner.

Eugene Volokh: Well, right, right, it was before the television was also certainly radio.

Jane Bambauer: Yeah.

Eugene Volokh: All right, all the best Jane.

Jane Bambauer: Bye.