In the month since the election, we’ve seen state after state rush to condemn or regulate adult content.
In South Carolina, a legislator wants mandatory filters on all computers sold in the state. Lawmakers in Virginia and Tennessee hope to see porn declared a “public health crisis,” as it was last year in Utah. In Utah, a legislator now wants to allow private citizens to sue producers for damages from viewing pornography.
By branding porn a “public health crisis,” the conservative moralists are arguing that the supposed secondary effects of porn can be prosecuted even when “obscenity” cannot.
Laugh them off at your own risk. Since 1973, we’ve relied on the First Amendment for our defense. In the age of Trump, that may not be enough.
The “public health crisis” strategy may seem ludicrous: a religious ideologue dressed in a lab coat … and in some ways, it is. No reputable scientific organization has endorsed the supposed epidemic and the supposed effects of the “crisis” — sex crimes, teenage pregnancy, divorce — have all declined dramatically over a period in which porn became more accessible than ever.
But moral crusades are fact-free endeavors, and the language of “public health crisis” is part of a larger strategy to get around the traditional limitations of “obscenity” law.
Since 1973, “obscenity” prosecutions have largely depended on a “community standards” argument. That is, that a film or book violates the standards of the community in which it was sold. In the old days, that meant a local district attorney could shut down a screening of “Deep Throat,” or that a California producer could be busted for shipping a DVD to Salt Lake City.
The internet changed all of that, making “community standards” much tougher to determine, and sales much tougher to track. So, while the second Bush administration did produce some high-profile “obscenity” prosecutions including John Stagliano, Rob Black, Max Hardcore and Ira Isaacs, it wasn’t a second coming of Reagan or Nixon.
By branding porn a “public health crisis,” the conservative moralists are arguing that the supposed secondary effects of porn can be prosecuted even when “obscenity” cannot.
That means that a wife in Utah might sue a producer for alienation of her husband’s affections, or that Elizabeth Smart might sue for damages related to her imprisonment, because her captor watched porn.
By arguing that it is a “public health crisis,” governments are given wide berth to regulate adult material based not on specific content but on imagined social effects of adult material.
That means opening up adult producers to civil lawsuits, or requiring filters on laptops, or mandating age-verification and user registries (as has already begun in the U.K.). Just as troublesome, it puts pressure on corporations, which need not comply with the First Amendment, to limit access at the ISP level, or banks to restrict lending. It is not a judicial strategy but an extrajudicial one.
Proponents of the “public health crisis” model are fond of using the regulation of tobacco as precedent, but a better comparison would be abortion. After Roe vs. Wade established a woman’s right to choose, opponents were forced to come up with other ways to restrict access to services — vaginal ultrasounds, forced literature, mandatory waiting periods, excessive regulation, defunding of clinics, public shaming of doctors — to do what the courts wouldn’t.
Under Obama, there was little institutional support for these restrictive measures.
But the Republican Party’s national platform has called internet pornography a “public health crisis,” and our president has agreed, signing a pledge to strip adult material of its First Amendment status.
We cannot afford to take these incursions lightly, it’s crucial that we respond. Over the next few months, we will be working on a resource guide for legislators, journalists and the general public to help combat the misinformation.
The bills that label porn a “public health crisis” link it erroneously to everything from sexual dysfunction and divorce to violence against women.
The claims and the implied proscriptions harken to the dark days before adult film was legal, and when sex and sexuality were only discussed behind closed doors, if at all.
Throughout history, there has always been concern from moralists and censors that speaking about sex frankly, whether in the form of adult entertainment or Kinsey or Mapplethorpe, would somehow corrupt society.
In fact, actual science shows that viewers of adult entertainment are more likely to hold progressive views on sexuality and women’s rights, and more educated on sexual health. Access to adult entertainment correlates pretty clearly, historically and geographically, with declines in sex crime.
No reputable, science-based public health organization has labeled pornography a “public health crisis.”
Not the U.S. Department of Health and Human Services, the U.S. Centers for Disease Control and Prevention, the National Institutes of Health, the American Medical Association, the American Academy of Pediatrics, or any state health department.
The true “public health crisis” is the lack of adequate, science-based sexual health education in U.S., perpetuated by socially conservative politicians like these for over 35 years. This has led to unbelievably high STI and HIV infection rates in youth, as well as a teenage pregnancy rate of 26 per 1,000 in the U.S. vs. 6 per 1000 in Europe. Regressive policies like this will achieve nothing.
Unfortunately, we expect more states to join Utah, Virginia, Tennessee and South Carolina in the coming months.
Angered by the advance of progressivism, inclusion, and a growing acceptance of sexual expression and openness, its self-appointed morality police have cherry picked facts and cited advocates rather than scientists. Rather than a success for traditional American values, it is in fact a gross violation of them.
There is little difference between these actions and those we see in other states attacking sex education, women’s reproductive rights, and the rights of the LGBTQQI community.
The common thread linking each of these battles is a coordinated, large scale war on progressive values. In regards to pornography specifically, for those who seek to be the sole source of authority on morality and expression, consenting adults engaging in displays of healthy sexuality must indeed be anathema.
The issue at hand is not adult entertainment or sexuality, but politicians that traffic in shame and stigma.
We need a society where sexuality is spoken about openly, and discussed in nuanced and educated ways, not censored. We can and must work together to prevent non-adults from accessing adult material.
Unfortunately, legislators in Utah and elsewhere are often uninterested in actual solutions — such as the use of software for parents to block access to adult sites, “opt-out” systems and talking with children about online activity — in favor of moralistic campaigns that traffic in ignorance and bias.
We need the First Amendment more than ever, but we’ll need a broad campaign that inoculates against ignorance even more.
Eric Paul Leue is the executive director of the Free Speech Coalition.
