Can you define pornography? Neither can the government.
For years the government has tried to censor or burden access to sexual content in an attempt to block minors from accessing so-called explicit content. At the ACLU, we know that these efforts unlawfully burden adult access to sexual materials and do not actually keep kids safe. That’s why we’re headed back to the Supreme Court to challenge a Texas law that burdens access to sexual material in the name of protecting kids.
In FSC v. Paxton, we and the law firm Quinn Emanuel are a Texas law that forces people to share personally identifying information — potentially including a picture of themselves, biometric scans, or their government ID — before they can access websites that host some amount of sexual content.
Texas’s age-verification law is another insidious attempt to dismantle our right to access information — and to express ourselves freely.
Texas Attorney General Ken Paxton claims this is a reasonable measure to protect minors. But the law will inevitably censor speech that is not pornographic, much less obscene. Even Texans who don’t watch porn could feel the effects. The law could potentially reach social media sites like Reddit, streaming services that host enough R-rated movies, or websites that focus on sexual health.
This is not new. For more than a century, restrictions on sexual content have been distorted, stretched, and misused for political gain. This has led to non-explicit content, like classical paintings and children’s picture books, being censored and suppressed.
As we head back to court, we examine the history of censoring sexual content — and why it so often ends up infringing on our First Amendment rights.
Lewd Content and Comstock
Alexandre Cabanel, Public domain, via Wikimedia Commons
In 1873, Anthony Comstock, an influential anti-vice crusader, convinced Congress to pass a federal law criminalizing the distribution of “obscene, lewd, or lascivious” materials through the mail or by common carriers. While initially conceived of as a way to suppress information about sex or abortion, the Comstock Act never officially defined “obscene” and this quickly led to it being used to ban all sorts of materials — explicit or not. For example, Comstock successfully brought charges against an art gallery owner who sold reproductions of famous nude paintings — including Alexandre Cabanel’s masterpiece “The Birth of Venus.”
While the law has not been enforced for decades, it was never repealed. Today, extreme anti-abortion groups are trying to convince the future Trump administration to revive it.
Movies and Dance
In 1907, Chicago enacted the first film censorship law, requiring movie theater owners to get permission from a police-run board to show certain films. Second Deputy Superintendent Metellus Lucullus Cicero Funkhouser, who served as the city’s chief censor, chose to eliminate movies with dancing because he believed they encouraged teenagers to go to dance halls, a source of “much crime and immorality.” Funkhouser even banned an on how to dance the Hesitation Waltz, the Turkey Trot, and the Tango. Other cities followed Chicago’s lead and enacted laws of their own.
Comic Books and Corruption
In 1954, a Senate subcommittee dedicated to investigating juvenile delinquency on comics books and their alleged propensity to corrupt youth. The committee's star witness, Fredic Wertham, used his standing as a prominent psychologist to peddle pseudoscience about the dangers of comic books and promote anti-gay fearmongering. Though the Senate didn’t pass legislation, the stoked public fear that comics were corrupting children and threatened to decimate the comic industry.
To save itself from financial ruin, the industry formed the Comic Codes Authority, which created a code for publishers to follow that would eliminate explicit content. To publish comics with the authority’s seal of approval, publishers needed to follow a dizzying array of restrictions, including bans on joking about divorce, vulgar language, and “sexual perversion” or “sexual abnormalities.” The code was used to LGBTQ+ characters, romance plots, and even mildly violent content, bringing the golden age of comics to an end and demonstrating how efforts to censor sexual content can quickly spiral out of control.
Book Bans
Book bans are nothing new, but in the last few years, local and state governments have banned books in public schools and libraries at reportedly and rates. These bans claim to stamp out “pornography” and other sexual or vulgar content, but have instead been weaponized against content that politicians or governments do not like. In Iowa, for example, a new state law that prohibits public schools from carrying books that contain descriptions of "sex acts" has in thousands of removed books. But the removed titles are a far cry from Penthouse or Playboy. Instead, they include “I Know Why the Caged Bird Sings” by Maya Angelou, a children’s picture book about the U.S. Secretary of Transportation Pete Buttigieg, and “Maus” by Art Spiegelman.
Public libraries have also been ordered to take books off shelves. In 2021, officials in Llano County, Texas from the county library system after community groups argued they were “pornographic filth.” Some of the titles banned for being pornographic included children’s picture books about farting, books about LGBTQ+ people or characters, and books about race in the United States.
First Amendment Rights
Much like these historic and current efforts at censorship, Texas’s age-verification law is another insidious attempt to dismantle our right to access information — and to express ourselves freely. 11 states have passed age-verification laws restricting access to sites that post sexual content since 2024, and several other states are reportedly considering such laws.
These age-verification laws draw a fence around ideas that the government finds objectionable. As today’s book bans, and other restrictions throughout history, show, such fences can have unexpected consequences for children and adults.
By taking this case, the Supreme Court has the chance to stem the tide of bills that wrongfully block sexual content and once again uphold all of our right to freely access constitutionally-protected speech — whether pornography or picture books.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas. -
Press ReleaseNov 2024
National Security
Free Speech
Ahead of House Vote on Bill that Would Stifle Dissent, ACLU Sounds Alarm AgainAhead of House Vote on Bill that Would Stifle Dissent, ACLU Sounds Alarm Again
WASHINGTON — The House of Representatives is set to vote Thursday on the Stop Terror-Financing and Tax Penalties on American Hostages Act, a bill that would give the incoming Trump administration new power to muzzle, punish, and effectively shut down tax-exempt organizations without transparency or appropriate due process. This misguided piece of legislation would impact a wide range of tax-exempt organizations, including nonprofits, universities, and even news outlets. Last week, Congress narrowly blocked the bill based on due process concerns and significant constituent opposition. In just a few days, over 100,000 people sent messages to their members asking them to oppose H.R. 9495. Last week’s vote was brought up under suspension, which requires a two-thirds majority to pass. Tomorrow’s vote will come under regular order and only requires a simple majority. The American Civil Liberties Union led a coalition of over 180 non-profit organizations — including Planned Parenthood, AFL-CIO, United Auto Workers, and the NAACP — in a letter to Congress outlining why this bill is not only dangerous, but unnecessary. The letter also laid out how future administrations could abuse it to lock in power, silence dissent, and go after disfavored groups and vulnerable communities. “Every time we give the president new powers and more authority to act alone, we create an open invitation for abuse by the executive branch,” said Kia Hamadanchy, senior federal policy counsel at ACLU. “While the ACLU would oppose this legislation no matter who the president is, and there is no question it could be weaponized against groups on both ends of the ideological spectrum, the rhetoric we saw on the campaign trail from the president-elect is even more reason for Congress to reject this bill.” H.R. 9495 joins two unrelated measures together: one allowing the Treasury Department to withhold tax-exempt status from any nonprofit it accuses of being a “terrorist-supporting organization” — without being required to disclose the evidence against it — and another, non-controversial measure, which would offer tax relief to Americans imprisoned unjustly abroad. The latter provision already passed the Senate as a stand-alone bill, and as the coalition letter notes, none of the groups oppose these tax-relief provisions. In fact, not a single member of Congress has thus far raised any opposition to these provisions. The fastest way for it to become law is for the House to simply pass the Senate bill.