How Would Amy Coney Barrett Rule on Porn, Online Freedom Issues?

WASHINGTON, D.C.—On Saturday, Donald Trump formally introduced 48-year-old federal appeals judge Amy Coney Barrett as his new nominee to serve on the United States Supreme Court. Trump nominated Barrett to replace the long-serving Justice Ruth Bader Ginsburg, who died at age 87 on September 18, due to complications of pancreatic cancer. Coney Barrett, like Trump’s two previous SCOTUS appointments—Neil Gorsuch and Brett Kavanaugh—is known as a judicial conservative. But when it comes to how she might rule on cases affecting the adult industry, such as “obscenity” cases, or online civil liberties, her record is unclear. Trump’s new nominee has a thin history on adult-related issues for the same reason she has a thin record on many other issues. She has served as a federal judge for less than three years, since Trump appointed her to the Seventh Circuit Court of Appeals in November of 2017.   But in 1998 and 1999 Coney Barrett was a clerk for the late Justice Antonin Scalia, an icon in conservtive legal circles. In her speech accepting Trump’s nomination on Saturday, she indicated that there was no daylight between Scalia’s legal views and her own. "His judicial philosophy is mine, too," Barrett said in her remarks. "A judge must apply the law as written. Judges are not policy makers and must be resolute in setting aside any policy views they might hold." What she means by “apply the law as written” is unclear. Justices overturn written laws on a regular basis. In her 2017 confirmation hearings, she acknowledged that the Supreme Court has long recognized “unenumerated” rights in the U.S. Constitution—that is, rights that are not written into the Constitution itself.  While she appears to have no record ruling in pornography or obscenity cases, Scalia’s positions may provide clues to Barrett’s own, given that she claims to hold a judicial philosophy identical to that of her former mentor. According to The First Amendment Encyclopedia, Scalia considered “obscenity” and even “nude dancing” to be “inconsequential forms of expression,” and as a result, not protected by the First Amendment’s guarantee of free speech.  Scalia supported laws regulating “obscenity,” but only as it pertained to depictions of “sexual conduct.” In a 2011 case, Brown v. Entertainment Merchants Association, Scalia ruled that obscenity statutes could not be extended to depictions of violence. In other words, in Scalia’s legal view, depicting sex could be “obscene,” but depicting violence couldn't. Another indicator of where Coney Barrett may stand on pornography and obscenity-related cases comes from her longtime association with The Federalist Society, a conservative legal group which has provided Trump with recommendations for Supreme Court appointees. All three of Trump’s nominees have been suggested by The Federalist Society. The Federalist Society has long argued in favor of bans or regulations on pornography, perhaps most famously in the 1980s when then-Attorney General Edwin Meese—who sat on the Federalist Society Board or Directors—led a legal assault on porn, culminating in the publication of the Attorney General’s Report on Pornography, which recommended three-dozen measures that the government could use to crack down on porn. Meese was awarded the Presidential Medal of Freedom by Trump in 2019.  Barrett’s legal stance on issues concerning online civil liberties such as net neutrality, Section 230, or digital privacy is even more unclear. According to the technology news site Protocol, she has not made any rulings, or authored any academic papers, on issues bearing on technology and internet freedom.  As a conservative jurist, she can be expected to take positions favorable to business, according to Protocol. But with both liberals and conservatives now calling for rollbacks to Section 230, the so-called “First Amendment of the Internet,” where Barrett would come down remains a mystery. Photo By CSpan / Wikimedia Commons Public Domain