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Good news, everyone: The Nanny State is back and coming to a computer screen near you!
In fact, if you live in Washington state or Missouri, the Nanny State is coming to a computer screen very near you indeed, because it will be your own computer’s screen. Or smartphone screen, or smart watch screen, or pretty much any other screen you can connect to the internet.
As you may have read here on The War on Porn or elsewhere, both states currently are considering bills which would not only impose age verification requirements on adult websites but would require such sites to publish warning notices about their content, as well.
The Washington bill is the murkier of the two, stipulating that the warning labels to come are “to be developed by the department of health.” The Missouri bill, on the other hand, is quite specific indeed.
The legislation being pondered in Missouri would require sites to publish warnings stating that “Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function;” that “exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses;” and finally that “pornography increases the demand for prostitution, child exploitation, and child pornography.”
To say that these claims are disputed would be to put it mildly. Most of the evidence for these assertions is anecdotal in nature, in part because it’s very difficult to evaluate them without intentionally exposing a group of minors to pornography (which is illegal to do) in the context of clinical study.
Regardless of their basis in fact (or lack thereof) these labels are what attorneys and Constitutional scholars call “compelled speech,” something which is a bit of a no-no under First Amendment jurisprudence and the appropriately named “compelled speech doctrine.”
As explained by David L. Hudson Jr., writing for the Free Speech Center at Middle Tennessee State University, the compelled speech doctrine “sets out the principle that the government cannot force an individual or group to support certain expression.”
“Thus, the First Amendment not only limits the government from punishing a person for his speech, but it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages,” Hudson adds.
The compelled speech doctrine has been invoked by the Chief Justice John C. Roberts-era Supreme Court as recently as the case Rumsfeld v. Forum for Academic and Institutional Rights.
“Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say,” Roberts wrote for the Court in 2006.
When some folks hear about these labels, doubtlessly they say to themselves something like “How is this any different from requiring cigarette packages to carry warning labels?” And that would be a good question, if cigarettes were a form of speech that presumptively enjoys protection under the First Amendment.
Beyond that distinction, there’s another obvious difference here. Cigarettes, unlike pornography, have been subjected to extensive clinical study, research which has confirmed that nicotine is addictive, and that tobacco (along with the myriad other substances found in cigarettes) is strongly associated with the development of lung cancer and various cardiopulmonary disorders and diseases.
In short, the analogy between pornography and cigarettes is a terrible one, scientifically and legally.
There was a time when I would very confidently assert that the Supreme Court will eventually reject these warning labels as textbook compelled speech and shoot down at least the labeling requirements in the bills pending in Washington and Missouri. But after their decision in Free Speech Coalition v. Paxton, I’m not so sure.
For those who like the contours of our First Amendment just the way they are, this uncertainly should be even more alarming than the warning labels the Nanny State wants us to start seeing on porn sites.
