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NYTimes
New York Times
23 Dec 2024
Adam Liptak


NextImg:What Would the Founders Have Thought About TikTok and Online Porn?

In a pair of arguments next month, the Supreme Court will consider what the First Amendment, ratified in 1791, has to say about TikTok and online pornography.

Applying a provision drafted in the age of powdered wigs and quill pens to 21st-century technologies has sometimes proved challenging for the justices. That is particularly true for the ones who say they are originalists committed to determining the meaning of the Constitution when it was adopted.

A memorable exchange in 2010, in an argument over a California law banning the sale of violent video games to minors, showed how that task could divide the court’s conservative members.

It started when a lawyer for the state, defending the law, uttered a sentence verging on the comic. “I know of no historical evidence,” he said, “that suggests that our founding fathers, in enacting the First Amendment, intended to guarantee video game retailers a First Amendment right.”

Justice Antonin Scalia, who embraced originalism, was unpersuaded. “Every time there’s a new technology,” he said, “you can make that argument.”

Justice Samuel A. Alito Jr. needled his usual ally.

“I think what Justice Scalia wants to know is what James Madison thought about video games,” he said, to laughter. “Did he enjoy them?”


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