Comment by robkop
13 hours ago
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.
It’s not the ideal of the system. We shouldn’t have two tiered justice, the top should be being held accountable.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
1 reply →
Not quite that simple. Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.
There are other means to gaining power, of course.
3 replies →
Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
maybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.
I would read your summaries of legal precedents again, ahead of lots of people who AAL.
Highly recommend the podcast “Advisory Opinions” if you are interested in Supreme Court analysis.
I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
1 reply →