Steve Palmer [00:00:00]:

Okay, Lawyer talk Q and A sort of Q and A. Steve Palmer here. Check us out. LawyerTalkPodcast.com the reason I call it sort of Q and A today is because it's not that I've got specific questions at my website if you've got one. By the way lawyertalkpodcast.com leave us a comment. Send your question there. That's fine. I'm getting lots of questions in my real life the sort of the cocktail party barstool questions about this recent US Supreme Court case on pornography.

Steve Palmer [00:00:26]:

Everybody loves porn or you hate porn, whatever it is you decide. But there was a case, a recent case. I'm going to get the case right. The Free Speech Coalition Inc. Vs. Paxton. Came out of Texas. I think at any rate the at issue at that case was whether these click through the pop up that's that verifies Your age is 18, whether the state law requiring that for a porn site that had one third porn was constitutional or not.

Steve Palmer [00:00:54]:

In other words, did does a law like that out of the state violate the First Amendment? And that sent me down this rabbit hole of, of, of my old. I had to dust off the nooks and crannies in my brain to start thinking about old First Amendment regulatory schemes and the constitutionality of First Amendment regulation. And I thought I, I gave this, I had this conversation with somebody else. I thought it'd be helpful here. First of all, I think we should all this is porn we're talking about. So that always that sort of sets it off at a pedestal that is unique because you either love or hate porn or you're either good with it or you're not good with it or you're, who knows. But anyway the famous quote I know when I see it, Potter Stewart, believe it or not, I think came from a case out of Ohio, Jacobellis versus Ohio, where he said I shall not today, Potter Stewart, our Justice I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, hardcore pornography he was referring to and perhaps I could never succeed in intelligibly doing so. But I know it when I see it and the motion picture involved in that case is not that.

Steve Palmer [00:01:53]:

So we all know what is pornography when we see it. But it's a slippery definition. I'm not going to dig into the politics or any of that about what is porn and what's not porn. But I think it's, it was more helpful for to sort of review what state regulations can do and what they can't do from maybe a mile high perspective. So basically there's two types of regulatory approaches that our courts have, our First Amendment U.S. supreme Court cases look at. The first is something called content based regulation. Content based regulation is the worst.

Steve Palmer [00:02:25]:

In other words, if the government, whether it's your local village all the way up to the federal government, says you can't say that because what you're saying is offensive, or we don't like what you're saying, that is content based regulation. It is almost always unconstitutional. Almost always. On the other side of the spectrum you have what we call time, place and manner restrictions on speech. So that is completely different. That's not the government saying you can't say this because of the topic or the content of your speech, but rather you can't do it now and here because it's disruptive. Let me give an example and we'll talk about the two. We'll talk about two polar opposite political perspectives without taking a position on either one of them.

Steve Palmer [00:03:12]:

You had Black Lives Matter protests a few years back around the country and let's just juxtapose that with say KKK marches with guys in white hats. You know, two just miserably opposite things without taking a position on who's right or wrong. The government can't do either. The government can't say we will let you BLM protesters be on the statehouse lawn, but then not also. Maybe not at the same time, but not also allow the KKK pointy white hats guys to be on the statehouse lawn to push their message. What the government can do though is say you can't do this. Whichever group, you can't do this at rush hour traffic and shut down Main Street USA without a permit. Now why? Because the government has an interest in regulating the time, place and manner of your speech.

Steve Palmer [00:04:11]:

In other words, you can get your message across, but you can't shut down our city without a permit. And if the government's going to give a permit to one side, it has to give a permit to the other side. Not necessarily at the same time. They're not going to encourage those two polar opposite organizations to beat each other to be there at the same time. That would be chaotic, but it can say you guys have to have a permit. Now sometimes these time, place and manner restrictions end up being unconstitutional because their impact favors or disfavors one side or the other, or maybe the content of the speech. So you can imagine a scenario where the government creates a regulation that automatically would preclude one group. So say you Got a religious group that is not allowed to use electricity on the weekends for whatever reason, I'm not going into that, but say that for whatever reason you had that.

Steve Palmer [00:05:10]:

So the government said we're only going to let those people have their protest on weekends. And you know, if these people are keeping to a religious tradition that would preclude them from ever, ever, ever being able to comply with the regulation. That, that might be considered an unconstitutional time placement manner restriction if it's calculated anyway to do that. So look, I made that up. There's no case I'm spitballing here guys, but you get the picture. The idea is to give you the understanding from a mile high so time, place and manner restrictions are okay and content based regulation is not. Now there's tests that the U.S. supreme Court referenced in their recent case.

Steve Palmer [00:05:48]:

One is, you know, we've called it for years, strict scrutiny. And now this court sort of shifting over to a different test like a history text or a historical analysis of what we've always done or what the founders would have done. And here they sort of blurred the two. I think there was some language about the history text and tradition, but I think they still decided what test to apply. And if it's content based regulation, it has to be viewed with the strictness, the strictest of scrutiny. We call it a strict scrutiny test, meaning it hardly ever passes. If it's time, place and manner, it's more of an intermediate or lower level or even maybe a rational basis. So if there's some good reason that the government would not want you to shut down Main Street USA at rush hour, then that's probably okay.

Steve Palmer [00:06:34]:

Now if you're not allowed to shut down Main Street USA and you're favoring one side or another, well that, then you're shifting back over here and the analysis gets a little bit more murky. So that's the big picture. Now the question in this case is whether the pop up for 18 or older is a valid time, place and manner regular or first, if it's a time, place and manner or if it's content or if it's valid in the first place, if it's time, place and manner. And that was really the issue here. And I, I, if people ask me what I think about it, I don't know, I always look at these things like what next? So what next? Is the government next going to create a regulation that's a, it's just an incremental step further than the 18 verification and you know, you can maybe contemplate what that could be, maybe you can't because it's technology and it changes faster than some of us. You know, we're not Elon Musk here. Some of us can't see what's coming. But you can sort of picture that if this is okay, if this is an okay regulation, then there's always a push further.

Steve Palmer [00:07:32]:

So I understand why these groups exist. Like you know, Free Speech usa, whatever that company, let's get it right, the Free Speech Coalition. I understand why they exist because they want to protect free speech. And you can argue about their motives. Maybe they're bad, maybe they're good, I don't care. But I like the idea that they're out challenging these types of regulations because that's what makes our constitutional system great. We get to challenge government action and the court gets to decide and sort of give us guidelines on what the constitutionality of it is. And that's what they did here.

Steve Palmer [00:08:02]:

So what's next? I don't know. You know, people could be worried about their own websites, but maybe a lawyer's website that people represent folks charged with these horrible sex crimes and maybe they have language on their website that is that talks about this stuff maybe in the academic or in the legal realm. And could that ever get caught up in a pop up like this that says if you're 18 or verify you're 18 before you go to this website? It might. And would that be okay? It might be. And what's the problem with it? Well, maybe Google sees that pop up and, and now the lawyer's website is throttled back a little bit from search engine optimization. I don't know. Again, I'm guessing, but these are the things that we have to think about. So I hate oversimplifying things and I'm not trying to overcomplicate things, but just trying to give you guys the big picture of what this is.

Steve Palmer [00:08:55]:

So if you've got questions, you want me to talk about First Amendment some more or another constitutional topic, I love this stuff. My normal practice is criminal defense, but this is sort of fun. Shoot it to me in the comments. Go to lawyertalkpodcast.com where we are trying to come at you week in and week out, Q and A style, off the record, on the air.