WASHINGTON—The American Enterprise Institute (AEI), a conservative think tank, has criticized the U.S. Supreme Court for its ruling in Free Speech Coalition et al. v. Paxton. In a briefing published by the institute on Tuesday, nonresident senior fellow for technology policy studies Clay Calvert explains the rationale for criticism.
Calvert explains that the conservative majority of the high court found a carve-out for First Amendment protections over controversial forms of expression, such as porn.
"To grease the skids for a decision that burdens First Amendment rights, it helps to subtly denigrate the group that’s fighting for free speech," observes Calvert in the AEI blog post. Additionally, keep in mind that Calvert serves as the professor of law emeritus at the University of Florida's Levin College of Law and the institution's Brechner Eminent Scholar Emeritus at the College of Journalism and Communications. He is a scholar who specializes in First Amendment case law and communications policy.
"The group here is the Free Speech Coalition (FSC), which describes itself as 'the trade association of the adult entertainment industry based in the United States,'" said Prof. Calvert. He points out that nowhere on the Free Speech Coalition's website does it mention the term "pornography," which is a socially stigmatized term. Alluding to the opinion of the majority, written by conservative Justice Clarence Thomas, Calvert notes that FSC was denigrated as "a trade association for the pornography industry."
"Semantics matter because under [United States] law, there are three distinct categories of sexual speech: obscenity, child pornography (sometimes called child sexual abuse material), and variable obscenity (content targeted in Free Speech Coalition that’s obscene to minors but not adults)," Calvert wrote.
"Notably, pornography is not a legal term; it’s just a disparagingly loaded word," he added. "Thomas unloaded it against the FSC, making it just that much easier for adults to stomach a decision burdening their own First Amendment rights."
