Taya v. United States/opinion

Joint Court Decision
The case in front of us proposes that two sites are banned from American access due to their propagation of child pornography. The court acknowledges that Congress, in it's reaction, was trying to do the right thing. However, the way the bill was proposed and signed does not make it constitutional

The bill does single out two entities, the sites YouPorn and Pornhub and attempt to have their access be utterly unavailable to the United States audience. This is a direct example of a bill of attainder, which makes the act unconstitutional.

The act furthermore attempts to regulate a punishment without Due Process, violating Article I, Section 9 and is therefore an attempt to instate *Ex Post facto*, which is unconstitutional.

The act also, in it's incompleteness, fails to justify or even lay out provisions that would allow the sites to seek reinstatement after such material has been removed and policed, as well as proper lack of enforcement.

Finally, the bill fails to consider other, non-legislative means to solve the issue, jumping the gun and going to an outright ban, and is thus excessive.

The Ban on websites that promote illegal pornographic material Act shall be struck down and rendered void, and all actions taken to promote the act's use shall be overturned.

SO ORDERED Chase, joined by unanimous

However, what Congress is not free to do is single out entities, declare they have committed a crime, declare them guilty, and issue punishment without trial. Congress has seized and attempted to swallow the judiciary and act as judge, jury, and executioner on their own 1. Bill violates Article I, Section 9 as a Post Ex-Facto Law to unrightfully punish Pornhub and Youporn 2. Bill violates due process Recommendation 1. Reinstate Pornhub and Youporn 2. Conduct an investigation 3. The State should rewrite the bill to include: Enforcement, limitations and fines - Concurrence from Justice Strangelove

Justice Aleword Opinion
ALEWORD, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 1-0004

CHARLES TAYA v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

[January 18, 2021]

JUSTICE ALEWORD, concurring. I join the Court’s opinion because I agree that this legislation violates the Due Process clause of the 14th Amendment. I write separately to emphasize that the Due Process clause was violated because the pornographic websites in question did not have sufficient scienter. In Smith v. California, 361 U.S. 147 (1959), the court decided that in order to be criminally liable for ‘possessing’ obscene material, one must be scienter to the obscene material. To say another way, in order for a defendant to be punished for a crime, there must be a probability of his knowledge of the lawfulness of the material before committing the crime. It is not likely that these pornographic websites, or its users, had knowledge of the illicit nature of some of the material published on their site. Albeit, they acknowledge that there was some issue with illicit materials, because they had mechanisms in place to police those kinds of posts. However, it remains a fundamental right for an individual to possess and view whatever they want in the privacy of their own home as decided in Stanley v. Georgia, 394 U.S. 557 (1969). As it is a fundamental right, the government must prove it has a legitimate interest in protecting interest in protecting adults from unwitting exposure to obscenity, and protecting children from exposure to obscenity. Clearly there is an overt interest to end child pornography and other exploitative obsenities. Indeed, “[T]he government's interest in protecting children from abuse was paramount.” New York v. Ferber, 458 U.S. 747 (1982). Courts use one of two tests to assess the constitutionality of statutes that are faced with a substantive due process challenge: the strict scrutiny test or the rational basis test. Therefore, we must first determine which test should be applied in this case. Where the law restricts the exercise of a fundamental right, we apply the strict scrutiny test. Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute that is narrowly drawn to serve that interest in the least restrictive way possible. In other words, even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive way to advance it, the statute fails this test. In this case, I find that the statute is too broad and unconstitutional. There are many more viable solutions to prevent or stymie obscenities that would not infringe on the rights of law abiding viewers, creators, or web sites. Congress could impose penalties, enforce guidelines that increase moderation, limit immunities so that companies are incentivized to behave better. As civil leaders, congresspeople could petition that the site be boycotted and begin anti-exploitation campaigns. Nothing in today’s opinion forecloses these alternative solutions. With that understanding I concur.

Justice McCord Opinion
January 18 / Annabeth Chase Supreme Court Letter to Litigants on the Decision in Taya vs. The United States of America Justice Elizabeth McCord

Dear Charles Taya and the Solicitor General: On the decision of Taya-v-United States outlining the constitutional violations in the Ban on websites that promote illegal pornographic material Act purposed by Andrzej Duda. In no way should the United States encourage or allow child pornography in any way, but it’s equally important we uphold the values of our constitution, which I do not believe this bill upholds. Aside from the very evident lack of an enforcement clause, outlining how the bill should be enforced, the bill in question is also in direct violation of Article 1 Section 9, specifically limiting the ability of Congress to legislate in certain areas. I absolutely believe it is an imperative obligation that the Executive Branch investigates the companies in question for their complacency in the promotion of child pornography, which should then be followed up by proper trial in court.

Elizabeth McCord Elizabeth McCord, Associate Justice United States Supreme Court