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naraburns  nihil supernum  1yr ago (text post)   32408 thread views

Culture War Roundup for the week of January 23, 2023

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You raise some interesting points, but I don't know if any of them are really enough to torpedo this law. Constitutional questions are intriguing and omnipresent, but do they really apply here?

That's fair, and trying to predict how courts will take First Amendment reasoning is always a little bit of a guessing game. It's possible that the justices would consider criminal penalties as implicating free speech in ways that civil penalties do not. If they do at all, though, I think Ashcroft is pretty on-point for requiring strict scrutiny and for the 'least restrictive means' testing, at least:

"Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress' goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives."

Now, that was partially a fact-based evaluation: the state did not provide and at that time could not provide evidence that criminal penalties were particularly effective compared to filtering options. But while the calculus has changed a little since -- the "family computer" is far less standard a concept today -- I don't think most of these have changed enough.

I think that's why you don't see a simple statute that could be enforced by the AG as a criminal law or regulatory matter.

This means that any award of damages would have to be related to the harm caused in the same way that a personal injury award is related to things like medical bills and missed work. If a woman came into my office and told me she wanted to sue XHamster because her 14 year old son saw a naked boob, I'd have no idea what to even ask for. Nominal damages?

I'd expect that the typical 'lawsuit' involves a parent bringing a laptop to the legal office, the lawyer's tech getting a list of every site in its history, sending a glorified shakedown letter to every business with offices in the United States but not, actually issuing service to those who don't respond, and then dismissing anyone who actually shows up to the court, which 'solves' a lot of this. A lot of the protections the adversarial system provides depend pretty heavily on being able to get a lawyer half-way across the country on short notice, and for smaller shops that probably won't be in the cards.

That said, for actual cases, I agree this is the most immediate limitation. The intended test case-for-actual-courtrooms might have some trivial-but-uncontestable damages, like where the kid used a credit card without the parent's consent, and then tries to mug as much at the jury or judge as possible on anything else, then exploit the legal fees mandate a la the Westboro approach (note that it's specifically shall for both new actions) as hard as possible. Louisiana does have odd rules for punitive damages where not specified by the statute for annoying historical reasons, though I don't know enough on it to say if it matters here.

Alternatively, the intellectual sponsors of the bill may look for the worst cases -- where a minor ends up groomed, abused, or tricked into uploading unlawful and humiliating content. Damages and fault are still a mess to estimate, especially given that a lot of the most anti-porn people will find 'ended up trans' was 'because' of porn, but revenge porn cases have sketched out a number of related test cases for simple matters, and it's far more likely to make the defendant as unsympathetic as possible.

On its own, I don't think that's unusual; there's too many statutes that allow random shakedowns. But add in a regulatory and financial infrastructure that's very vulnerable to pressure, and a lot of very valid reasons for people to be risk-averse themselves, and it can have pretty broad effects if popularized.

I doubt many parents are going to want to subject their teenage children to being grilled by hostile attorneys about their masturbation habits in public.

Unfortunately, I don't think you need a huge number. While not an exact parallel, the Americans with Disabilities Act had (and has) quite a number of people making pretty similar defenses, where a lot of hypothetical abuse would be limited because making court pleadings and testimony would often be humiliating. And for the median person, that's true! But on the tail end, you have people producing thousands of filed suits (in addition to whatever number of complaints and unfiled threats-of-suit), sometimes involving pretty humiliating avowances and courtroom testimony. Nor is it some special exception: there are multiple state laws informally named after and immortalizing (what I hope was) a 14-year-old's most humiliating day so far.

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