If Pearl-Clutching Rhetoric is the Same as Legal Precedent, Texas Wins

As the kids on social media today (and kids on the playgrounds in the 1980s used to) say, that’s a sick burn, counselor!

What Colmenero’s line isn’t, I think it safe to say, is a legal argument.

To be sure, Colmenero’s response does contain legal arguments, including one which suggests she believes the way the Miller Test is applied is by finding the most extreme descriptions and depictions you can from a website or two and having those stand as representative of an entire entertainment industry sector’s output.

“Were Justice Potter Stewart to take a peek at Plaintiffs’ websites, he would not say of pornography, ‘I know it when I see it,’” Colmenero speculates, referencing Stewart’s famous comment from Jacobellis v. Ohio. “He would ask instead, ‘What did I just watch?’”

It’s probably worth mentioning Jacobellis v. Ohio is a pre-Miller Test case, so legally speaking, whatever Potter Stewart would have made of the videos available on modern adult websites is about as relevant as what I think of them. Colmenero isn’t trying to make a legal argument, though; she’s trying to shock the court into ignoring legal arguments.

Later in the response, Colmenero reaches for another oh-so-compelling technique: Citing a Supreme Court dissent to a majority opinion to which the court reading her response is bound.

“In Ashcroft v. ACLU, the Supreme Court reviewed First Amendment challenges to the federal Child Online Protection Act (COPA)—which imposed a $50,000 fine and six months in prison for persons who knowingly provided harmful material to minors,” Colmenero notes. “COPA created an affirmative defense if the content provider showed it verified age via reasonable means. Justice Scalia championed the view that a statute’s regulations of “commercial pornography” did not warrant strict scrutiny…. Under that view, HB 1181 should also be subject to a lower standard of judicial scrutiny because it regulates only “commercial entit[ies’]” publication and distribution of material harmful to minors.”

Colmenero then concedes “Justice Scalia’s dissent is not binding, but Defendant advances and preserves the argument here for purposes of appellate review.”

The good news is, if this whole Texas interim attorney general gig doesn’t pan out into a promising career in the future, Colmenero can fall back on another her skills: porn video description writing.

“All of this can seem far-off and academic without a clear understanding of what mainstream porn looks like in the year 2023,” Colmenero writes. “It is not simply the full-frontal nudity in Playboy Magazine. It is ‘gangbangs’ of a tied-up young woman, who, over the course of a 36-minute video is bound with rope and electrical tape, strangled, gagged, slapped, and then penetrated by the penises of five men—at points, three at a time—all of whom eventually ejaculate on her face while her mouth is forced open.”

OK, so that’s probably a little clinical for the tastes of most gangbang aficionados. But with a little practice, I think Colmenero has real promise as a smut-wordsmith!

Rhetorical excess and painstakingly accurate porn descriptions aside, what’s most interesting to me Colmenero’s argument is what it implies about the new status of obscene material in Texas. Think this through: If all porn is obscene and obscenity isn’t protected by the First Amendment, then all porn is illegal – which means Texas just passed a law saying it’s fine and dandy for their citizens to look at illegally obscene material, so long as they present an ID first. Right?

If that’s the argument, maybe we’ve been looking at this new Texas statute all wrong.

Pearl strand photo by cottonbro studio from Pexels