Response to Santorum's Anti-porn Screed

Allan Gelbard, Esq.

ENCINO, Calif. — Rick Santorum's anti-porn screed isn't surprising considering its speaker and its intended audience. His only chance of winning his party's nomination is to pander to the right-wing fringe of his party, the people who believe the separation of church and state is a myth and that they should be able to enforce their religiously motivated morality on others through the power of the state.

These evangelical Taliban think that subjugating women, denying freedom of expression, and controlling our private sexual behavior — what we do, watch or even consider — is not just acceptable, but morally required, because their religion demands it.

Fortunately for all of us, Santorum has (at least) two significant problems: (1) the First Amendment's Speech and Establishment Clauses prevent what he wants to do; and, (2) his facts are hogwash.

Santorum starts out by offering a number of assertions to support his position.  But if one engages in critical reasoning, and just a hint of actual research, these assertions prove to be blatant falsehoods. For example, he initially describes pornography as a "pandemic" to whip up his base and scare everyone else. A "pandemic" is defined by Webster's as "occurring over a wide geographic area and affecting an exceptionally high proportion of the population." However a pandemic is usually a term related to an actual disease that actually kills or sickens a huge number of people.

There's no question that pornography is enjoyed and used responsibly by millions of men, women, and couples all over the world. It has been since mankind drew the first hieroglyphic images on cave walls depicting sexual activity. But I suspect that when these millions of "users" are examined by their physicians, you know, people who understand actual science, all but an extremely small number will be found to be just fine. The pseudo-science Santorum cites as supporting his preposterous contentions that pornography effects brain chemistry, causes addiction, and causes the host of other ills he asserts has all been refuted by actual scientists that weren't in the pocket of — and funded by — the far right.

He also claims the "average" age of first exposure to "hard core Internet pornography" to be 11. This raises the following questions: (1) what is the scientific source for this assertion?; (2) what was the sample group for this alleged study?; and, (3) where are the parents?

When someone is less interested in reality than in coming to a predetermined conclusion, they can rig studies and manipulate "data" to come to whatever conclusion they are inclined to prove. Time and time again, from the Meese Commission report on, it has been shown that the "studies" cited by right-wing would-be sensors are fatally flawed. Common sense proves that as there are plenty of people who don't view pornography until well into their adult years, if Santorum's "facts" are correct, then there must be some fetuses viewing internet pornography ... .

More importantly, it's a certainty that most 11-year-olds don't acquire their own private computers without their parent's knowledge. So with the availability of internet filtering software, both built into all currently available browsers and through third party providers, one should look to parental responsibility to control their children's internet use.

In Reno vs. ACLU, where the Supreme Court struck down the Communications Decency Act as being unconstitutional, they stated "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." We don't make our adult world child-proof by banning things like guns, cars and refrigerators, all of which could be actually harmful to children.  We trust parents to guide their kids through childhood and to teach them about the adult world so they can safely enter it when the time is right. If parents would simply employ the numerous technological mechanisms available to them, and comprehensively teach their children about sex, then the possibility of suffering any alleged harm from being exposed to internet pornography would vanish. Unless, of course, you believe that sex outside of marriage, and sex within marriage for anything other than procreation, is a sin...

Yes, many Americans have been repeatedly asking their government to shut down pornography. They are the same folks who wanted George Carlin's comedy, Janet Jackson's nipple, "NYPD Blue"'s naked tush, and Cher's "Fuck-em!" purged from society. They do so because they are offended. But fortunately, this country doesn't recognize mere offense as a sufficient basis to censor speech. An examination of Santorum's "coalition" proves each to be a religiously motivated group. What Santorum and his fringe audience really want is that not just "obscene" porn, but all indecency, be removed from society - not because it causes any actual demonstrable harm - but because it is a sin and they are offended by it.

It's interesting to note that many of the early obscenity laws included any blasphemous, obscene, immoral, or heretical publications. This shows the actual underpinning of obscenity as nothing more than speech considered immoral and against religious sensibilities. It is also important to understand that in our society, speech that is offensive — including pornography — unless found by a jury to be "obscene' is fully protected by the First Amendment. (Note however that many constitutional practitioners, myself included, think that even the "obscenity doctrine" is unconstitutional and violative of the First Amendment.)

Modernly, the definition of "obscene" speech, speech lacking full constitutional protection, comes from a U.S. Supreme Court case entitled Miller vs. California. The "Miller test" as it is known, is a three part determination of a works prurience, patent offensiveness and literary, artistic, political or scientific value.  Each of the 3 prongs is judged based on an application of the standards of a community, the first two being the local community where the prosecution occurs, and the third, a national community.  This is why when prosecuting obscenity, overzealous governments seldom bring cases in larger metropolitan communities. They bring them in small towns in the heart of the bible belt.  However today, even in the more conservative communities, there are more and more findings that "community standards' aren't offended by pornography. (E.g., recent obscenity acquittals in Forrest City, Ark. and Pendleton, Ky.)

From a purely legal prospective, there is a question as to whether applying local community standards to internet speech is constitutional at all. A 2009 case out of the 9th U.S. Circuit Court of Appeals, U.S. vs. Kilbride, adopted a national standard for all three prongs of the Miller test when applied to internet communications. This makes sense because, as internet speech is — by definition — available everywhere, applying the local community standards of the most conservative community would permit censoring the internet as to anything beyond what that community would tolerate, giving them an unconstitutional "heckler's veto." 

Fortunately, we become a more tolerant society over time. We're increasingly accepting of others engaging in activities that we, ourselves, might not do because we don't want others telling us what we can and can't do.

Acceptance of homosexuality, alternative lifestyles (BDSM, swinging, etc.) gay marriage, are all examples of the forward march of progress. We don't have to be participants in lifestyles to permit our friends and neighbors to do so.  Unless, of course, your religion prevents it. Then all bets are off.

Finally, Santorum states the "Department of Justice seems to favor pornographers over children and families." He apparently either isn't aware of the several obscenity cases prosecuted under Obama's D.O.J. (e.g. U.S. vs. Stagliano which I helped defend and U.S. vs. Isaacs) or, more likely, he just doesn't care about the truth because his form of toxic vitriol and religious crusading is just what his base wants to hear.

I have no doubt that should Santorum be elected, there will be more prosecutions. They would be a waste of national resources and an affront to our constitutional protections. I suspect, many years in the future, that when academics look back on this time in our political history, they will decide that any "harm" caused by sexually explicit speech has been far eclipsed by the harm done to our republic by the attempts of the far right to control our morality, health, and to undercut the basic freedoms of speech and religion — including freedom from religion — that our country is supposed to stand for.

Allan B. (“Al”) Gelbard is a sole practitioner based in Encino, Calif. His practice is restricted to First Amendment, Intellectual Property and Entertainment law. He is one of the nation's premiere adult entertainment lawyers.

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