A coalition of commercial pornographers, styling themselves as the “Free Speech Coalition,” is asserting that Texas is threatening their First Amendment liberties by making them legally responsible for verifying the age of viewers who use their websites.

Anyone operating with a vestige of a moral compass, however, should sense something farcical in the pornographers’ preening efforts to claim the moral high ground. Yet given the state of precedent, they have reason to expect the Supreme Court to side with them and prevent Texas from enforcing a law to stop porn from flooding into children’s minds.

The process by which the nation’s highest court came to abet the industrial scale of pornography distribution might be fairly described as diabolical. And no, that’s not hyperbole. I use “diabolical” in the etymological sense espoused by Professor D.C. Schindler, in which a division (dia-ballo means “to divide”) is made between reality and appearance, and appearance is made to substitute for reality in a way that is simultaneously appealing but self-defeating.

Pornography generally, and the digital porn industry specifically, is diabolical both in its puerile appeals to consumers and the legalistic appeals it makes to the courts.

To consumers, porn offers graphic, commodified images as replacements for the physical act of the sexual encounter. To courts, the porn industry presents itself as a defender of hallowed liberty, and a vindicator of minority rights against majority tyranny. But in substance, it asserts the expressive right to commodify performers’ bodies and viewers’ attentions, to algorithmically manipulate and overwhelm the most potent human instincts, and to introduce adults and children alike to an addictive, digital stimulant.

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When the Supreme Court enforces a liberty redefined by pornographers to defeat laws like Texas’s, it participates in the diabolical, appearing to protect what is good while thwarting the defense of the vulnerable.

The case of Free Speech Coalition, Inc. v. Paxton involves a law modeled off of the same age verification systems that are prevalent in online banking, gambling, and alcohol sales, as well as those used by porn sites in much of Europe. The law covers only commercial entities that traffic primarily in porn, bans no one from accessing porn who can prove his age, and imposes only fines, not criminal penalties.

That very modest burden sent the porn industry dashing to court before the law was ever enforced. There, they shrieked about the supposed threat Texas posed to the Constitution and the privacy rights of the users that the industry surveils so diligently. The district court sided with the pornographers, determining that the law imposed content-based restrictions and burdened constitutionally protected expression in ways greater than necessary to protect children. A three-judge panel of the Fifth Circuit voted 2-1 to restore the law, but the majority relied on pre-internet era case law to do so, denying “that the invention of the Internet somehow reduced the scope of the state’s ability to protect children.” Would that it were so.

While it is true that the problems with the Supreme Court’s free speech jurisprudence have predigital roots, as digital porn has expanded by orders of magnitude, lawmakers’ ability to address the spread has contracted.

A predigital sign of trouble was the Court’s shift to a stance of neutrality in free speech cases in the mid-20th century.

For well over a century after the First Amendment constrained federal abridgment of speech, and decades after it could be read to constrain states, courts still saw no legal infirmity in the existence and enforcement of state laws against blasphemy and obscenity, concluding that those categories were not protected speech. But in the 1950s, the Supreme Court began a sustained retreat from that once firm view. By the end of the ‘60s, the Court replaced its deferential approach to state law with an aggressive stance of neutrality as to the content and viewpoint of expression. And while obscenity persists as a category of unprotected speech, the Court’s doctrinal shift has rendered it toothless.

Neutrality became the means of escape for justices who were embarrassed at having to make substantive moral judgments, and were just as embarrassed that state legislators had made them. But neutrality goes against the mainstream, traditional American First Amendment jurisprudence.

In the Founding era, states balanced individual license with public welfare and morals, and thus asserted speech rights were, writes Jud Campbell of Stanford Law School, “generally defeasible in face of genuine public needs.” After the emergence of neutrality, however, the Court declared in Stanley v. Georgia that these “noble” moral purposes, which previously helped lawmakers distinguish between liberty and license, were “wholly inconsistent with the philosophy of the First Amendment” that the Court had suddenly discovered almost 200 years later. 

The Supreme Court’s sudden philosophical epiphany fit comfortably in mid-century America’s haute bourgeois society, which was then engaged in what Campbell calls a “shift toward a more values-neutral form of liberalism” that prized equality. Neutrality in speech cases exemplified this tendency, because it insists, dogmatically and implausibly, on an equality between unlike things. Under the neutrality paradigm, pornography and core political speech are interchangeable when the question is whether a law is content-based. Treating both equally as “speech,” neutrality seems to make speech an end unto itself rather than a means of attaining some other goal. But the judicial triumph of “speech neutrality” was caused by and reinforced a broader shift in American society away from rights and duties toward abstract, expressive individualism, the core of which is the expression of self-determined sexual identity. 

The shift in the Court’s free speech philosophy works hand in glove with its philosophical approach to “liberty” writ large. That new diabolical view of liberty might be best summed up in a now infamous passage written by former Justice Anthony Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Tellingly, the Supreme Court deployed that phrase to discern supposed constitutional rights to abortion and sodomy, rights born in the bourgeois imagination having no historic antecedents. As Schindler notes, Kennedy’s infamous “mystery” passage is astonishing in its arrogance and naiveté. It “thrust[s] upon” even the “meek and unassuming” a burden exceeding the ambitions of antiquity’s tyrants. Moreover, it is utterly incomprehensible unless one begins by indulging the modern assumption that existence, meaning, and the universe are largely subjective. The whole notion that individuals should be left to decide this new freedom for themselves “not only taxes the imagination, it kills it.”

Still, many Americans remain attached to expressive individualism’s redefinition of liberty. The dissent from the lower court’s ruling against the pornographers makes that clear. It explained that the First Amendment makes a “signal commitment to individual autonomy, yet to be realized, and in many ways a child itself until the 20th century when the sense of its embrace of individual worth soon became palpable.”

True enough, the Supreme Court has changed its views on the First Amendment, but the simple fact of change tells us nothing about whether that change is the natural extension of liberty or a corruption of it. Concluding that it is the former requires us to assume, as the dissent does, the essential truth of the expressive-individualist paradigm. But when writing paeans to “individual worth” in a case brought by the porn industry, perhaps judges ought to entertain the possibility that something somewhere has gone amiss.

Expressive individualism is in fact a diabolical counterfeit of real liberty. Pornographers who profit from addiction and slavery are defending a vision of freedom that has no fixed or natural idea of what is good. Actions like making or watching porn become noble expressions of freedom by virtue of an individual’s choice and consent, which are more inferred than real. That liberty is therefore fundamentally negative, a void. And into that void streams the mercenary logic of markets making all things, up to and including the human body, into what Schindler calls “a token, an exchange value,” a process which porn exemplifies.

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Pornography illustrates vividly this tragic encounter of abstract legal doctrine with the hardwired realities of human nature, which is always in danger of giving itself over to its appetites even as it vies for control of the world around it. The ancient lust to which pornographers appeal is associated with the most primitive parts of our brain. And though the obsessive devotion to digital technology is a distinctly modern phenomenon, it arises from the much older lust to control the natural world in order to free man from the vicissitudes that make him labor and die. Yet, as with many such developments, the logic of technological advancement has not been the general dissemination of a benign freedom, but the acquisition of control and profit by a few, and the increasing risk and dependency for many.

Pornographers operate comfortably within the dominant legal and technological frameworks, cultivating profit on the dependency of others. The Court has made it easy for them to conceal their online wretchedness beneath claims that “sexual content online” may be “artistic, informative, or even essential to important parts of life.” But pornography does not participate in a rational public debate, nor does it seek after truth, beauty, or even basic knowledge—it trades on a sub-rational appeal, submerging the faculties that make us meaningfully human. 

The late Justice Antonin Scalia understood the nature of this problem. In his frequent dissents from the Supreme Court’s pornography-enabling decisions, he maintained that commercial entities that appeal to the prurient instinct engage in activity unprotected by the First Amendment. Would that his colleagues had heeded him rather than Anthony Kennedy. 

Unfortunately, the liberty claims of pornographers have been met with astonishing credulity. In true diabolical fashion, the Court’s willingness to accept a counterfeit as reality has undermined the whole concept of liberty. For behind the bespoke briefing of well-heeled lawyers, and the once respectable advocacy of the American Civil Liberties Union, is the sneering contempt of Jacobinism that invokes a corrupted view of rights to destabilize order.

Amidst the revolutionary thrall of 1790s Paris, the Jacobins installed a prostitute on Notre Dame’s altar and declared her the “goddess of reason,” a diabolical gesture that would surely thrill today’s pornographers. The Jacobins, much like pornographers, exercised their viciousness by doing ugly things to human bodies for the entertainment of the masses. Grant the porn industry, those latter-day Jacobins, their conceit that pornography qualifies as liberty, and they will continue to do ugly things to the body politic.