Congress Shall Make No Law Abridging the Freedom of … Pornhub? 

Picture for a moment the Founding Fathers writing the Bill of Rights. First on the list: protect speech. The First Amendment does just that in saying “Congress shall make no law … abridging the freedom of speech, or of the press.” The purpose of this amendment was to protect Americans from being punished by the government for speaking out about politics, religion, and public life. But today, pornography has fallen under this amendment and is considered to be protected speech. 

That’s the default at least. When a new bill passes through Congress or there’s new media buzz about pornography, we commonly hear the “free speech” objection. But have you ever stopped to reflect on what exactly the “speech” is that the First Amendment is supposed to protect, and whether pornography is that kind of speech? 

We’ve somehow evolved to interpret the First Amendment to protect OnlyFans, Pornhub, and many other sources of explicit material. This is problematic on many levels. If we consider pornography to be speech, we have a tall hurdle to clear to regulate it in our speech-protecting country. But if we reframe pornography as a matter of privacy rights and public health, perhaps we can make more headway. 

Obscenity and the Constitution: Where Do Things Stand? 

To start, it’s important to have a brief understanding of US obscenity laws. Since Roth v. United States (1957), obscenity, which is a classification of certain pornography rather than pornography itself, has not been considered protected speech under the First Amendment. But why isn’t porn always considered obscene? In Roth, and later clarified succinctly in Miller v. California (1973), the Court laid out a standard called the “Miller test.” Under this test, something is considered to be obscene, and thus not protected by the First Amendment, if it: 1) appeals to the prurient interest, 2) is patently offensive, and 3) lacks serious artistic, political, literary, or scientific value. All three prongs of the Miller test must be met in order for something to be considered “obscene.” Modern websites like OnlyFans and Pornhub have never been examined under the Miller test, and, therefore, these websites and their content (if not depicting minors) are presumed to be protected under the First Amendment. This is because the Miller test sets a high bar for content to be considered obscene, and thus, it’s incredibly rare for anyone to take porn websites or pornographic materials to court. It’s considered a waste of time and money.  

So what is it about the Miller test that makes it such a high bar for obscenity? The first and third prongs of the test are highly subjective. And while the second prong is supposed to be the most objective of the three, it requires measuring the offensiveness by “community standards”—by modern community standards, that is. But because our modern culture has slowly but surely allowed films, television, and magazines to become overly sexualized, pornographic content (even graphic pornographic content) is so normal by community standards that we can no longer call it offensive. 

The First Amendment’s Original Purpose 

The Miller test determines whether certain speech is protected by the First Amendment, and in the US, courts almost always err on the side of free speech. The problem, however, is that pornography should not be considered speech at all, and until this is recognized, we’ll be fighting the wrong battle. 

The First Amendment was created to protect forms of political and religious communication. Pornography is a private form of sexual gratification. Its purpose is private sexual arousal, and thus, it should be evaluated under the right to privacy as established in Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Lawrence v. Texas (2003). The modern right to privacy recognized in these cases was meant to shield intimate acts from government intrusion. That is what pornography is: perverse sexual gratification in the privacy of one’s home. But a person’s choice to view sexual content in private is one thing; the right of corporations to flood the public sphere with addictive, degrading sexual material is another. The latter is a matter of public commerce, not private consumption, and belongs to the same category of regulable conduct as gambling, alcohol sales, or the promotion of illegal drugs.  

Framing pornography as a public health and consumer protection issue rather than a First Amendment one would return the debate to its proper place: the state’s duty to protect the common good from commercially driven harms. Porn, after all, is far more similar to drug use than it is to dialogue in terms of its function and public health impact. The right to privacy that American courts so staunchly protect would apply to a person who consumes pornographic content in the privacy of his home. It would not, however, protect the creation or distribution of porn. Categorizing porn as a privacy matter rather than a free speech one would give legal backing to any attempts to ban its distribution. 

How Do We Make This Shift? 

People, especially children, have a right not to be exposed to pornographic content in public, online, and in educational settings, and this outweighs a company’s right to produce and distribute porn. Porn must be reframed as a matter of privacy rights and public health to make this clearer to the general public and to our lawmakers. We have enough information about porn’s effects on mental and physical health, but we need to shift public perceptions of pornography’s harms more broadly.  

This is difficult but not impossible. This shift needs to happen first through cultural, academic, and legal scholarship, as well as through legislation and strategic litigation. We must argue in each of these spaces that porn has no artistic or moral value; that much of porn is commercialized sex performance rather than expressive speech; and that porn’s production and distribution involve significant harm to others, thus disqualifying its “speech” classification and removing its First Amendment protection. We also need to fund public health research on porn-related harm to establish a compelling government interest and test the limits of “porn as speech” in areas involving non-consensual exposure, AI-generated deepfake porn, and child-development harm. 

This shift will take time, but it’s one that would be effective in the long term. It could permanently change public perceptions of pornography—similar to the way in which perceptions of smoking in the ’60s changed based on studies and information showing harm to others, leading to a ban on the advertisement of cigarettes. Courts are much more willing to ban harmful “private” matters that affect public health than they are to regulate any form of speech.  

A Global Issue 

Reframing this issue in the US matters for more than just Americans. Other nations have been far quicker to adapt their laws to the realities of online pornography. By looking abroad, we can see that the question is not whether it is possible to regulate this material, but how and to what extent a society chooses to protect its citizens.   

In places like the UK, porn is already being reframed as an issue of public harm, and new legislation is having much more widespread support because of it. In South Korea, porn is not considered to be speech and is deemed intrinsically harmful. Thus, all porn in South Korea—not just that having to do with a child or extreme cases—is criminalized, both in access privately and in distribution. 

However, porn use in South Korea remains high. And even if bans happen legally in the UK, the viewing of harmful porn will also probably remain high. This is because most porn creators and distributors are based in the United States, so the banning of porn in other countries is nothing that a virtual private network (VPN) can’t circumvent. In fact, more than fifty other countries such as Singapore, China, and India, have already fully or partially banned pornography due to moral perceptions and public health, but most of them still have problems with high usage. Developing a technology or legal system that can prohibit VPN usage on certain websites is quite difficult, so these countries are left at the mercy of US lawmakers and porn distributors. 

If the creation and distribution of harmful porn were criminalized in the US, half of the world probably would lose access to those porn sources. Is it possible that new companies would pop up in countries where bans have not taken place? Potentially, but, historically speaking, the way moral issues are framed by the US and Western nations tends to become the way moral issues are framed for the rest of the world, even if over time.  But the US is already behind on this issue. Bans are common in Africa, Asia, and the Middle East, and the UK is leading the way in Europe. A ban in the US could tip the scales to create a porn-free world. 

Current and Future Legislation 

Many efforts to ban pornography have been thwarted due to its classification, and this will continue to happen to new bills.  

Consider the Interstate Obscenity Definition Act (IODA) that is making its way through the Senate right now. The IODA attempts to place online porn distribution within a statutory framework that criminalizes the distribution of obscene materials across state lines. It fixes the aforementioned issue of the second prong of the Miller test by defining “obscenity” much more liberally, and without community standards. Porn would still have to go through the Miller test to be considered obscene, but it would do so as redefined by the IODA.  

The problem with the IODA is twofold. First, it will probably not pass due to its perceived infringing on the freedom of speech. Second, even if it does pass, it still leaves open the two subjective prongs of the Miller test, and, as previously stated, courts will probably still use this subjectivity to err on the side of freedom of speech in every case. This has been the problem with every effort to regulate or ban certain forms of pornography in our country thus far, and it’s going to continue to happen until porn is no longer considered to be “speech.” 

We live in a country of great freedom, and with freedom comes responsibility—the responsibility to define those freedoms in a way that doesn’t harm our families. Congress shall make no law abridging the freedom of speech, but Congress should make a law abridging the freedom of Pornhub. 

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