Later this year, the most important free-speech case in decades will be decided by the Supreme Court, and it’s not about speech at all. It’s about common internet smut, and it’s high time the high court dispelled the modern myth that the purpose of the First Amendment includes protecting porn. The truth is that common porn popular on the internet today is lower than obscene speech. Obscene speech is unprotected, but at least it’s speech. Common internet porn today is not speech at all, and that makes a big difference. 

In the modern myth of the First Amendment, free speech is at once too shallow and too broad. It’s too shallow, as it’s taken to be just the act of pleasing one’s self by saying or doing something. It’s just “trolling” speech that can be censored. According to the myth, a man may be censored merely if others are displeased by what he says more than he is pleased by saying it. But free speech is much deeper than just trolling: It’s the right to seek and then — by one’s conscience — to state the truth.
In the modern myth, free speech is also too broad. It includes that which has absolutely no meaning or message and is just mere conduct, like looting or internet smut. The modern free-speech misunderstanding leads to the atrocious anomaly whereby the most important speech is leveled with the worst conduct and the former gets too little protection while the latter gets too much. 
This tragic misunderstanding is on full display at the Supreme Court in Free Speech Coalition, Inc. v. Paxton. The case arises from several state laws requiring porn sites to verify their users’ ages. As everyone knows, any child with an internet connection — and that’s all of them now — can pull up free porn within seconds with virtually no effort.
The internet’s public square is awash in free porn. Three of the five most trafficked websites in the United States, according to data from April 2023, are porn. (RELATED: Free Speech Coalition, Inc. v. Paxton: Porn Doesn’t Have to Be ...