You can tell it’s election season, when radical politicians start banging the drum for another war on something. Recently, four Republican Congressmen wrote a hysterical letter to the Department of Justice, demanding that Attorney General Bill Barr make obscenity prosecutions a priority again. These lawmakers sought to remind the DOJ that obscenity laws still exist, and that then-candidate (now President) Donald J. Trump signed some kind of pledge to wipe out porn. Their pleas echo demands by a small, vocal contingent of politicians and activists across the political spectrum who have sought to declare pornography a public health crisis and tried to link it to human trafficking. While this latest campaign relies on some new buzz words and sales pitches, it is based on the same faulty logic as previous failed prohibition efforts.
In 1969, the U.S. Supreme Court ruled that people had the right to view even obscene materials in their home. That triggered the first modern War on Porn by Democratic President Lyndon B. Johnson, who created the “President’s Commission on Obscenity and Pornography.” However, the Commission did not deliver the report that the administration expected. Instead, it found no evidence that porn played any significant role in delinquent or criminal behavior, and had no effect on character or moral attitudes regarding sex. It also determined that most Americans believed that they should be able to read or see any sexual materials they wished. Naturally, the report was rejected by Congress, the Senate and Republican President Richard Nixon, who succeeded Johnson. Obscenity prosecutions against “girlie magazine” publishers and adult film producers followed, and people went to jail.
Legal pornography does not increase human trafficking. No credible study has demonstrated such a causal link.
Then, in the early ‘80s, adult video tapes became readily available in corner video stores across the country. People could finally watch their adult film star of choice from the comfort of their home without venturing out to the local XXX theater. As it turns out, they liked this idea and adult video rentals kept most of the small stores in business. In response to this phenomenon, Republican President Ronald Reagan commissioned the infamous “Meese Report” on pornography. This time, the result was predetermined, and the report documented the purported harmful effects of pornography and the alleged connections between the adult industry and “organized crime.” The report was roundly criticized as being biased, not credible, and inaccurate. Yet the issuance of the report gave birth to the next War on Porn, in which video tape distributors and retailers were targeted by the Department of Justice with draconian racketeering laws. Numerous operators were prosecuted and imprisoned for selling videos of adults having sex. These efforts largely subsided with the election of Democratic President Bill Clinton.
Then came the “W” years, when Republican President Bush and Attorney General Eric Holder (a Democrat who later served under Democratic President Barack Obama) revived the “Obscenity Unit” in the Department of Justice and began pursuing adult DVD distributors and website publishers. This effort was fueled by the exotic theory that watching porn produces erototoxins in the brain, which triggers addiction — just like the dreaded crack cocaine. U.S. attorneys were instructed to bring obscenity prosecutions against both large and small operators, to ensure that nobody could take comfort that they were too small to fly under the radar. Those prosecutors who refused to play along were fired, according to some reports. However, the proliferation of adult content online proved to be too much even for the most zealous anti-porn censors. By 2014, this War on Porn was lost. Adult video clips thrived on the internet — particularly with the adoption of high-speed broadband access, and the popularity of adult “tube” sites.
That leads us to today. After a period of relative calm on the obscenity front, on December 6, 2019 Congressmen Jim Banks, Mark Meadows and Brian Babin, as well as Congresswoman Vicky Hartzler formally demanded that the Department of Justice stop the “explosion of obscene pornography” on the internet, cable TV, hotels and retail establishments. The letter touched off a firestorm on the internet and social media, with numerous commentators demanding that the government step in and regulate pornography. It also created a rift between moral conservatives who want to ban porn, and the libertarian wing that resists government over-reach. In support of the letter, Representative Banks claimed that children are struggling with pornography “addiction,” citing a U.K. newspaper article which anonymously quoted a single teenager claiming to be addicted.
In a feat of mental gymnastics, he also managed to conflate concepts of pornography, child pornography, obscenity, violence against women and human trafficking, stating: “As online obscenity and pornography consumption have increased, so too has violence towards women. Overall volume of human trafficking has increased and is now the third-largest criminal enterprise in the world. Child pornography is on the rise as one of the fastest-growing online businesses with an annual revenue over $3 billion. The United States has nearly 50% of all commercialized child pornography websites.”
What any of this has to do with the adult entertainment industry is anyone’s guess; however, the industry is historically on the receiving end of any call for obscenity prosecutions. There are specific laws prohibiting child pornography, human trafficking and domestic violence. Obscenity prosecutions are not necessary to combat any of those crimes. Statements like those made by Congressman Banks are tremendously misleading, and it is time to set the record straight.
Increased popularity of online pornography did not lead to an increase in violence against women. In fact, violent crime has decreased over the last several decades, including the rates of rape and sexual assault. Those who commit rape appear to consume less porn than the general population.
Online pornography is not uniquely addictive. Those who become addicted to watching online pornography have the same inability to self-regulate, or share psychological with people who have other compulsions or attachment disorders.
Legal pornography does not increase human trafficking. No credible study has demonstrated such a causal link. However, previous prohibition efforts have shown that criminalizing some product or service does not stop it from existing. Prohibition simply drives the activity underground, making it more dangerous for all involved. The previous concerns with porn’s alleged connection to organized crime would likely become more prevalent if the prohibitionists were successful.
The adult entertainment industry does not produce or endorse child pornography. This should be evident from the industry’s strong efforts to eradicate under-age content through support of groups like ASACP.org. Neither the business owners nor their customers want any involvement with under-age materials. The fact that there have been exceedingly few documented cases of underage performers in professional adult films demonstrates the successful efforts undertaken to ensure that minors are not allowed to participate in the industry.
Putting adults in prison for making movies that other adults want to watch has always struck this author as outrageous, and antithetical to fundamental free speech protections. In the last round of obscenity prosecutions, the government suffered some embarrassing defeats. But juries in obscenity cases can be unpredictable, and the Miller obscenity test is far from clear. Unlike most other crimes, the defendant in an obscenity case does not know if he or she is actually guilty until the jury returns a verdict. The courts are split on whether local or nationwide standards should be used to evaluate online content. As a result of the uncertainty created by an obscenity prosecution, some producers and distributors have paid a heavy price for providing adult entertainment to the consuming public.
Using precious law enforcement resources to pursue this effort will do nothing to combat child pornography, human trafficking or violence against women (or men). At most, some random lives will be ruined, and some videos may be taken off the market. Certain facets of the adult industry could be forced underground or overseas. However, there will be no appreciable impact on the production or distribution of erotic content.
The new War on Porn is different, as it tries to appeal to a broader segment of society than previous efforts, which were focused on morality and shaming. This newly-branded campaign is targeted at those who want to save victims and achieve social justice. Members of the adult entertainment community must be armed with the facts and defend their rights to sexual expression. If state or federal prosecutors decide to dust off outdated obscenity statutes and challenge the adult industry once again, they will likely find that freedom does not die without a fight.
Lawrence Walters has represented the adult entertainment industry for over 30 years. He can be reached at firstamendment.com or @walterslawgroup. Nothing in this article is intended as legal advice.
