Introduction
In yesterday’s article, I gave an overview of new brain research
that has exposed internet pornography as a powerfully addictive
narcotic. I also mentioned that, from a legal and constitutional
standpoint, the First Amendment is the ultimate hurdle to clear in order
to regulate or prosecute internet pornography.
But why should the government get involved at all? Isn’t consuming
internet pornography a private decision that doesn’t hurt anyone?
The claim that internet pornography “doesn’t hurt anyone” is patently disproved by years of multidisciplinary studies in the hard sciences and the social sciences. These studies have exposed internet pornography as a massive, paradigm-shifting social harm that undermines the family unit and causes abuse, life-long addictions, infidelity, and unhealthy perceptions and expectations among men, women, and children.
Likewise, the “no harm” argument also fails to consider the production
of internet pornography, which is produced by way of real human beings
who are almost always engaged in illegal and dehumanizing acts such as prostitution, rape, sex trafficking, assault, and even murder.
Though sexuality is considered “private” in our society, the social
effects of collective sexual behaviors and norms, including the effects
of internet pornography, cannot be kept “private.” Because pornography
is sexual, it is inherently relational and thus inherently social. How
people relate to each other in society is important, but how people
relate sexually is crucial to the sustenance of a society because
it either incentivizes or de-incentivizes the very foundation of
society: the family unit.
How then, one might ask, can such a vice be “protected” under the United States Constitution?
While many assume that the First Amendment protects internet pornography as “artistic expression,” that is largely not the case under current statutory and constitutional law.
Still, current First
Amendment jurisprudence, at least as it relates to
sexually explicit material, fails to properly discern and apply the
First Amendment’s purposes. An examination of prior and even current
precedent reveals that speech or acts of a sexual nature are a
historically unique category and thus require a unique analysis. By
considering the duties of good government and the intended purposes of
the First Amendment, we can develop a just and principled interpretation of the First Amendment as it relates to internet pornography.
The Founders’ Views on Free Speech
The scope and contours of the First Amendment’s speech clause are difficult to decipher by way of “original intent” due to the scarcity of information in the historical records.
While the freedom of the press was discussed, the free speech clause
was perhaps too obvious or fundamental to require debate. Still, the
general principles underpinning the First Amendment are accessible by
examining the Founders’ general understanding of liberty (“rights”).
Though the Founders had a broad view of liberty, they also recognized the distinction between liberty and license. In other words, liberty does not include the abuse of rights.
What sort of speech would qualify as an abuse of the “right” to speak
freely? Thomas G. West, Professor of Politics at Hillsdale College, explains
that there were four commonly-recognized categories of injurious speech
in the Founders’ era: personal libel, government libel, speech that
injures public health or the moral foundations of society, and speech
used in the course of, or that promotes, other injurious conduct.
Internet pornography, with its epidemic social harm, certainly
qualifies as speech injurious to society’s health and moral foundations;
it could also qualify as “speech used in the course of injurious
conduct” due to its use of prostituted and even trafficked people in its
production as well as its power to addict and harm those who see it.
It was uncontested in the Founders’ era and far beyond that speech or
conduct tending to injure the public morals was subject to government
control. Profanity, obscenity, indecency, and pornography were treated
the same as public nudity or public intoxication. Consider the following
quotation from an 1824 Pennsylvania Supreme Court case: “Licentiousness
endangering the public peace, when tending to corrupt society, is
considered as a breach of the peace, and punishable by indictment. Every
immoral act is not indictable, but when it is destructive of morality
generally, it is, because it weakens the bonds by which society is held
together.”
Professor West aptly notes
that the Founders did not distinguish between speech (obscene novels or
drawings) and acts (operating a whorehouse), but rather asked if either
tended to “undermine the moral basis of the community, especially of
the family and the moral formation of the young.” If so, such
activity—whether speech or act—was subject to legal limitation.
Obscenity
Obscenity doctrine in the United States can be traced to the common law doctrine of obscene libel in England. US courts began to cite the common law prohibition of obscenity by the 1810s, emphasizing the “opposition between liberty and license.” Government regulations of publicly-shown films were
upheld by the Supreme Court until the 1950s and were considered a
legitimate exercise of a state’s police power because such regulations
prohibited only films determined to be injurious to public morals or
order.
In 1915, the Supreme Court reasoned
that film was less like speech and more akin to live theater
performances, whose content was widely regulated by state and local
governments. At the time, film’s powerful unconscious effect on the
viewer was contrasted with the conscious analysis required when reading a book:
Unlike reading, looking at
images—particularly moving images—require[s] no active cognition; the
message [i]s thrust upon viewers. “When we read, there is time for
thought, reasoning, and the formation of judgment; but motion pictures
progress so swiftly as to permit almost no cerebral action . . . .” . . .
The written word “cannot lead the [viewer] further than his limited
imagination will allow, but the motion picture forces upon his view
things that are new[;] [it] give[s] firsthand experience. . . .”
But in 1952, the Supreme Court struck down a film censorship statute on First Amendment grounds and announced
that motion pictures were “expressions” and therefore protected as
“speech.” Even so, the Court still noted that “it does not follow that
the Constitution requires absolute freedom to exhibit every motion
picture of every kind at all times and all places.” In fact, it is still good precedent
that “prior restraints on expression” are not automatically
unconstitutional in all circumstances, as the Supreme Court has rejected
the notion that “constitutional protection includes complete and
absolute freedom to exhibit, at least once, any and every kind of motion
picture . . . even if this film contains the basest type of
pornography, or incitement to riot, or forceful overthrow of orderly
government.”
Current State of the Law
Under current
First Amendment jurisprudence, any sexually explicit “expression”
(including images and videos) is protected under the First Amendment
unless it is obscene or “real” (non-virtual) child pornography. The
constitutional meaning of “obscenity” has been through a few definitional tug-of-wars since the erosion of “license versus liberty” in First Amendment jurisprudence. The current definition—the three-prong “Miller standard”—has been stable since 1973, but it has been (and still is) heavily criticized:
(1) Whether the average person, applying
contemporary community standards, would find that the work, taken as a
whole, appeals to the prurient interest;
(2) Whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Despite criticism, the Miller standard was extremely effective for prosecutors under the Reagan and George H.W. Bush administrations. The Clinton administration, under Janet Reno, refused to enforce federal obscenity law,
and though a handful of egregious obscenity cases were prosecuted under
President George W. Bush, President Obama’s Attorney General, Eric
Holder, has now shut down the DOJ’s Obscenity Prosecution Task Force.
Analysis
Though most criticize Miller for its “community standards” requirement, Miller’s most
glaring defect is actually the third prong of the test. Assuming that
“prurient, patently offensive depictions or descriptions of sexual
conduct” can ever have a “serious literary, artistic, political,
or scientific value” is unprincipled and absurd. Furthermore, it is
ludicrous to suggest that First Amendment protection depends upon a
court’s assessment of such value.
The other problem with the Miller obscenity standard is that
it requires real people, whether juries or judges, to actually view the
obscene material, exposing them to the possibility of addiction or the
trauma of what can effectively be the viewing of a live rape. Hardcore
pornography is often “performed” as a reenactment of rape, commonly
causing internal bleeding from anal or vaginal tears. Thus, the judge or
jury is unjustly exposed to a profoundly traumatic and evil act on a
real human being.
In light of Miller’s faulty obscenity standard, perhaps a more
reasonable, precise, and workable definition for obscenity would be the
following: an explicit image, including video, of a sex act, where the
image/video is created (1) primarily for, or (2) with the primary effect
of, sexually arousing the viewer, and where the image/video was created
by actual sex acts (with “explicit” meaning clearly showing, even for a
moment, the penetration of/by genital organ(s) and with “actual sex
acts” meaning the actual touching of/by genital organs). (My thanks to Patrick A. Trueman and Alan Sears for being instrumental in the formation of this definition.)
Putting aside the obscenity exception for a moment, it is absolutely baffling that the underlying acts required to make internet pornography are not prosecuted by way of prostitution laws. Pornography is “prostitution with a camera” and is almost always created by an act of prostitution
(paying a human being to perform a sex act). So why is pornography
production not prosecuted under prostitution laws? At least in
California, where the majority of the US pornography industry is located, it is precedent
that the First Amendment somehow protects prostitution when “actors”
are hired to perform sex acts in “the production of a non-obscene motion
picture.” This California Supreme Court precedent has discouraged state
and local law enforcement from prosecuting pornographers and
“performers” using prostitution laws.
Next Steps
Constructing and implementing solutions to the internet pornography
epidemic in America is inherently difficult due not only to current
First Amendment precedent, but also to our cultural situation: current
pornography use is around 87
percent for young adult males and 31 percent for young adult females,
and roughly 50–60 percent of both genders find pornography use
“acceptable.”
The most realistic first steps we can take in the fight against internet pornography are prosecution and cultural engagement.
First, local, state, and federal governments should enforce the
current obscenity-related laws already on the books. Nearly every state
has anti-obscenity laws. The enforcement of those laws would send a
message that the production and distribution of obscene material is
unacceptable in a civilized society. Second, local and national groups
should run billboard, TV, and internet advertising campaigns to expose
the harms of internet pornography to the public.
Looking beyond those “first steps,” I would argue for the eventual
enactment of new laws that would censor obscene internet pornography.
A statutory system of narrowly-tailored, criteria-based censorship
would use accurate and effective censorship technology similar to
content-control software. According to Freedman v. Maryland,
prior restraint is not necessarily unconstitutional, especially when
restraining “base pornography” (i.e., hardcore pornography), as long as
the statute provides sufficient procedural safeguards to ensure that
protected speech will not be restrained. Creating such a system with
sufficient procedural safeguards will be the ultimate riddle.
Censoring hardcore pornography on the internet would not affect the private viewing of pornographic material by way of a DVD or a downloaded file
(current obscenity statutes may apply to the production of distribution
of such material), but it would strip two important elements from
internet pornography: its affordability and its accessibility. Censoring
would also help state and federal prosecutors focus their obscenity
prosecutions on the sale and distribution of obscene material by way of
mail, downloads, and porn shops. Currently, it feels futile to prosecute
obscenity in the face of seemingly endless amounts of free online
hardcore pornography, with more added every day.
Conclusion
Internet pornography is not only a public harm but also one of the greatest evils of our time. It destroys human beings: two-year-olds raped for entertainment; women drugged and then videoed while being raped by a dog; young women,
often runaways or adolescent victims of prior sexual abuse or neglect,
lured into the pornography industry where they are filmed being
gang-raped until their internal organs rip.
Pornography undermines civilized society: it erodes the relationship
between men and women; it undermines marriage, the family unit, and the
well-being and social standing of women and children; it causes sexual
addictions that debilitate a person’s productivity, discernment, and
ability to form healthy relationships.
And yet, a cultural and legal “knot” has been tied in this country
that cleverly protects the “license” of producing and consuming internet
pornography.
But the First Amendment was not ratified to protect the prostitution
and exploitation of human beings for entertainment; it was not ratified
to restrict government prosecution of “speech” that causes grave harm to
both individuals and to society as a whole. This concept of the First
Amendment would have been unthinkable to the Framers, who lauded virtue as the indispensable ingredient of sustainable freedom.
Surely our current jurisprudence, which protects depictions of
prostituted—and therefore criminal—sex acts, cannot be the proper
interpretation of the First Amendment. Freedom of speech is certainly a
precious liberty, but that liberty does not include its abuse: the
freedom of speech is not a license. Nor is it the fundamental social value that should trump all others.
Internet pornography is a “monstrous injustice,” and the time for its abolition has come.
