In a pair of arguments next month, the Supreme Court will consider what the First Amendment, ratified in 1791, has to say about TikTok and online pornography.
Applying a provision drafted in the age of powdered wigs and quill pens to 21st-century technologies has sometimes proved challenging for the justices. That is particularly true for the ones who say they are originalists committed to determining the meaning of the Constitution when it was adopted.
A memorable exchange in 2010, in an argument over a California law banning the sale of violent video games to minors, showed how that task could divide the court’s conservative members.
It started when a lawyer for the state, defending the law, uttered a sentence verging on the comic. “I know of no historical evidence,” he said, “that suggests that our founding fathers, in enacting the First Amendment, intended to guarantee video game retailers a First Amendment right.”
Justice Antonin Scalia, who embraced originalism, was unpersuaded. “Every time there’s a new technology,” he said, “you can make that argument.”
Justice Samuel A. Alito Jr. needled his usual ally.
“I think what Justice Scalia wants to know is what James Madison thought about video games,” he said, to laughter. “Did he enjoy them?”
Justice Scalia, who died in 2016, grew testy.
“No, I want to know what James Madison thought about violence,” he said. “Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech regarding violence? Anybody?”
Next month’s case on online pornography, a challenge to a Texas law that seeks to shield minors from sexual materials on the internet by requiring sites to verify users’ ages, has prompted a similar debate.
The challengers told the justices that the framers of the Constitution had no problem with pornography, drawing on the scholarship of Geoffrey R. Stone, a law professor at the University of Chicago.
“Sexual expression and imagery were common, widespread, legal and quite explicit” in the American colonies, Professor Stone wrote in a 2019 law review article, “Sex and the First Amendment.”
“In the 18th century, bookstores in the American colonies carried an extraordinary array of erotica,” he wrote, citing examples, “and there were no statutes forbidding obscenity during the entire colonial era. To the contrary, throughout this period, the distribution, exhibition and possession of pornographic material was simply not thought to be any of the state’s business.”
Indeed, Professor Stone wrote in his 2017 book “Sex and the Constitution,” Thomas Jefferson and Benjamin Franklin collected such works.
A brief supporting Texas from a group of law professors called that account “wildly inaccurate.”
The professors, several of whom are affiliated with Regent University, which says it offers a “Christian-integrated approach to legal education,” wrote that there seems to have been no domestically produced pornography until the 1840s and that “imports were accessible only to elites.” The brief added that the books in Jefferson’s library were not especially dirty.
Neither side discussed what James Madison thought about online pornography.
The TikTok case, which will be argued on Jan. 10, asks the justices to decide whether Congress violated the First Amendment rights of the video hosting service TikTok; its Chinese parent company, ByteDance; and its American users by requiring it to be sold or shut down.
In a ruling that the law was constitutional, the U.S. Court of Appeals for the District of Columbia Circuit looked to history.
“It goes without saying that a social media app through which some 170 million Americans absorb information and engage with each other and the world — in the palm of their hands — is a recent phenomenon,” Chief Judge Sri Srinivasan wrote in a concurring opinion. “But concerns about the prospect of foreign control over mass communications channels in the United States are of age-old vintage.”
TikTok, in a brief asking the Supreme Court to intervene, drew a different lesson from the past, citing a 1965 decision that struck down a law requiring people who wanted to receive mail that the government said was “communist political propaganda” to say so in writing.
“History and tradition show that this nation’s constitutional commitment to ‘uninhibited, robust and wide-open debate and discussion’ includes even supposed foreign ‘propaganda,’” the company wrote, quoting from the 1965 decision, Lamont v. Postmaster General, which in turn quoted from New York Times v. Sullivan, the landmark 1964 libel case.
Most First Amendment cases turn on the refinement and application of precedent, not the excavation of the provision’s original meaning. In striking down the law on violent video games, for instance, Justice Scalia’s majority opinion relied on a 2010 decision that said a federal law making it a crime to sell depictions of animal cruelty violated the First Amendment.
The only extended discussion of originalism in the case on video games came in Justice Clarence Thomas’s dissent. “‘The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians,” he wrote, drawing on Madison’s notes from the Constitutional Convention.
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