Internet Pornography & the First Amendment

 
 

Current jurisprudence protecting pornography as “artistic expression” contradicts the Founders’ understanding and the underlying purposes of the First Amendment’s protection of speech, and it fails to protect Americans from the social and personal trauma caused by pornography. The second in a two-part series.

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.

Morgan Bennett is a JD candidate at Pepperdine University School of Law.

 

 

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