Are "pay to remove porn filter" laws constitutional?

[I spent the winter writing songs about getting better]

These have been proposed in a few state legislatures but none has ever been passed (or even voted on to my knowledge.) Basically the law is that all computers sold in state or all ISPs have a filter on pornographic content which can be removed by paying a one time fee of like $25 with the money going to a fund to help sexual assault victims or something like that.

Would this even be constitutional and how would SCOTUS likely rule if one did pass? It seems to me that if the First Amendment prohibits such filters being mandated it'd also would prohibit mandating them unless you pay. I can't see a Court upholding the notion that First Amendment rights can be for sale. I'm guessing the court would rule this unanimously although Alito is the most likely dissenter.

[dead0man]

I've got to think the courts would block any attempt to do that.  Once again, we should thank the deity of our choice for the US Constitution. 


The US Constitution, Preventing Tomorrow's Karens From Ruining Our Fun

[I’m not Stu]

They're unconstitutional. SCOTUS strikes down in a 9-0 or 8-1 decision. Were they proposed by GOP lawmakers?

[I spent the winter writing songs about getting better]

They're unconstitutional. SCOTUS strikes down in a 9-0 or 8-1 decision. Were they proposed by GOP lawmakers?

Yep.
https://www.eff.org/deeplinks/2017/04/states-introduce-dubious-legislation-ransom-internet

[World politics is up Schmitt creek]

It seems like they should in general principle be constitutional because restrictions on pornographic speech are themselves constitutional, but the specifics of this idea seem pretty clearly non-kosher.

[Senator Incitatus]

Yes, absolutely.

[Obama-Biden Democrat]

Tipper Gore would be 100% for this bill.

[Esteemed Jimmy]

Yes, absolutely.

[I’m not Stu]

Tipper Gore would be 100% for this bill.

[Brother Jonathan]

On the face of it, I don't find anything in the broad strokes of the proposal to be unconstitutional. If it were, for example, simple a tax on pornographic books or magazines then of course there wouldn't be an issue. But since this case involves state intrusion on the internet, and because it would be a one time fee, I can see some possible issues depending on the specifics of the law. I can also see some serious privacy concerns, if for example the fee had to be paid using a credit or debit card and that information was somehow stored.

[Mr. Smith]

Don't see why not.

[Sirius_]

Based on a number of federal court rulings, I believe that the answer is no, based on the principals that:
1. The 1st amendment's freedom of speech includes a speaker and an audience. The constitution upholds the right to receive speech.
2. Speech may not be limited based on its content.
3. Governments can not levy a tax restricting the 1st amendment rights of citizens based on the content of speech.

Point 1 has been upheld on numerous occasions. In the case De La vs. Housing Authority of the City of El Paso, the ruling opinion explicitly states that:

the right to receive information is as equally protected as is the right to convey it

The Supreme Court concurred in the case Martin v. City of Struthers, again stating that

This freedom embraces the right to distribute literature... and necessarily protects the right to receive it.

This principal has been upheld several other times.

Point 2 was decided in the case R.A.V. v. City of St. Paul, in which the Supreme Court ruled that the government can not prohibit

otherwise permitted speech solely on the basis of the subjects the speech addresses.

Finally, point 3 has been upheld in multiple cases regarding taxes levied against newspapers and magazines. One example is the case Arkansas Writers' Project, Inc. v. Ragland , in which the state of Arkansas's practice of giving sales tax exemptions to certain magazines based on content, but not general interest magazines. Justice Thurgood Marshall stated that

a power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected.

This can also be seen similarly to the poll tax. As we should all know, the Supreme Court ruled that the 14th amendment protects the right to vote regardless of financial status. This could also be applied to freedom of speech.

Based on this evidence, I believe that such a law would be unconstitutional due to the use of a tax to restrict the ability of citizens to receive content based solely on the content of what they are trying to receive. As general pornography (not counting child porn, revenge porn, or other cases of rape or assault) falls under the category of "otherwise permitted speech", the state can not use a tax to specifically restrict access to it.

[S019]

The only solution here is to just ban porn, it's not needed in civilized society, and those who do need it, are disturbing to say the least...

[Del Tachi]

I think all pornography should be illegal; however, pornographic material is definitely obscene under the Miller test, so it isn’t a category deserving of First Amendment protection.  

A law banning pornography would be perfectly constitutional, so working backwards from there I don’t see any problem with taxing it or restricting access to it.  

[Sirius_]

I think all pornography should be illegal; however, pornographic material is definitely obscene under the Miller test, so it isn’t a category deserving of First Amendment protection.  

A law banning pornography would be perfectly constitutional, so working backwards from there I don’t see any problem with taxing it or restricting access to it.  

The Miller test has proven consistently useless. It has no bearing in the constitution regardless (there is no such thing as unprotected speech in the 1st amendment), but even with it being "enforced" it has never been a means of justifying such a far reaching policy. This test has not been interpreted to deem all pornography obscene. A blanket policy can not be constitutional because content has to pass the test on an individual basis.

[Del Tachi]

I think all pornography should be illegal; however, pornographic material is definitely obscene under the Miller test, so it isn’t a category deserving of First Amendment protection. 

A law banning pornography would be perfectly constitutional, so working backwards from there I don’t see any problem with taxing it or restricting access to it. 

The Miller test has proven consistently useless. It has no bearing in the constitution regardless (there is no such thing as unprotected speech in the 1st amendment), but even with it being "enforced" it has never been a means of justifying such a far reaching policy. This test has not been interpreted to deem all pornography obscene. A blanket policy can not be constitutional because content has to pass the test on an individual basis.

The Court has been quite clear that there are categories of speech that are not protected under the First Amendment:  defamation, threats, "fighting words", contributions to foreign terrorist groups, etc.  Obscenity is another one of these categories.

Moreover, there are blanket policies that ban certain categories of speech.  Laws against child pornography are the most relevant example here, of course.  There's not a foreseeable, valid Constitutional reason why a blanket ban on all pornography would be a non-starter.   

[Brother Jonathan]

I think all pornography should be illegal; however, pornographic material is definitely obscene under the Miller test, so it isn’t a category deserving of First Amendment protection. 

A law banning pornography would be perfectly constitutional, so working backwards from there I don’t see any problem with taxing it or restricting access to it. 

The Miller test has proven consistently useless. It has no bearing in the constitution regardless (there is no such thing as unprotected speech in the 1st amendment), but even with it being "enforced" it has never been a means of justifying such a far reaching policy. This test has not been interpreted to deem all pornography obscene. A blanket policy can not be constitutional because content has to pass the test on an individual basis.

The Court has been quite clear that there are categories of speech that are not protected under the First Amendment:  defamation, threats, "fighting words", contributions to foreign terrorist groups, etc.  Obscenity is another one of these categories.

Moreover, there are blanket policies that ban certain categories of speech.  Laws against child pornography are the most relevant example here, of course.  There's not a foreseeable, valid Constitutional reason why a blanket ban on all pornography would be a non-starter.   

Well, you might run into issues stemming from Stanley . Georgia, which held that laws making private possession of obscene materials illegal were unconstitutional. That being said, the decision also goes out of its way to note that it is about possession of obscene materials, rather than distribution, which I guess means you could make distribution illegal, but there may be issues if you try to make possession alone illegal. I don't really think the decision is well founded, but it's precedent nonetheless and could complicate any attempt at banning pornography.

[Ferguson97]

Yeah this would be unconstitutional IMO.

[7,052,770]

How do they decide what's pornographic and what's not anyway? Seems abritrary.

[lfromnj]

Probably not considering gun taxes are considered constitutional.

[Damocles]

How do they decide what's pornographic and what's not anyway? Seems abritrary.

Does a pretty lady sultrily moaning while eating a Ritz cracker count?

[True Federalist (진정한 연방 주의자)]

How do they decide what's pornographic and what's not anyway? Seems abritrary.

Does a pretty lady sultrily moaning while eating a Ritz cracker count?

You are so depraved.

Ritz?  Ritz!?!

[Damocles]

You are so depraved.

Ritz?  Ritz!?!

I know! They didn’t even bother to drink any water between each cracker!

[Hammy]

The only solution here is to just ban porn, it's not needed in civilized society, and those who do need it, are disturbing to say the least...

Not a fan of porn, in fact personally I find it disgusting, but I have to say this is one instance where the slippery slope argument is valid--there would be drastic consequences if we just start banning things that people deem as "not needed in civilized society" and eventually will apply to things like gaming, sports (I've already seen the argument of 'too violent'), alcohol, and then increasing recreation that one might deem unsafe or unneeded.