Restriction would be not only constitutional but essential to the political order.
The most discussed issue in the conservative blogosphere over the past couple of weeks, outside of the impeachment controversy, has been pornography — specifically, the extent to which the federal government should regulate it. This is a topic that animated conservatives in the 1980s, at the height of the culture wars, but it has been largely dormant until, on December 6, four Republican congressmen sent a letter to U.S. attorney general William Barr imploring the Department of Justice to enforce existing federal obscenity restrictions.
This letter prompted many social conservatives to pick up where they left off in the 1980s, condemning pornography as a social evil. But it also prompted some libertarian-leaning commenters to argue that porn regulation amounts to a right-wing puritanism that vitiates individual freedom and expands government. This is a conversation that should be happening not only on the right but also across ideological lines. Indeed, the American Left should be pressed to reconcile its demands for oversight of sexual boundaries with its indifference to the commodification of violent pornography.
Political disputes aside, there are three oft-neglected but important legal points that ought to be part of this conversation: one relating to Supreme Court doctrine, another relating to the Founders, and a third relating to why we should care about 18th- and 19th-century views on obscenity.
Supreme Court Precedent
As a matter of Supreme Court doctrine, the regulation of 21st-century Internet pornography is not a constitutional issue. This is because the type of material found on American porn websites clearly constitutes obscene material, which has never been treated as constitutionally protected speech under the First Amendment.
It is noteworthy that, when the Warren Court was struggling to determine the extent to which the First Amendment protects sexually explicit material, the cases involved concepts and images less scandalous than what we now find in magazines written for teenage girls. In Roth v. United States (1957), for example, the case that inaugurated the Supreme Court’s foray into abandoning the common-law view of obscenity, the Court was dealing with Samuel Roth’s distribution of this erotic book. (Read the editorial review, and the book’s selection from Dante’s Divine Comedy, for a sense of just how spicy the material was.)
Consider also Miller v. California (1973), in which the Burger Court overruled Roth and established the controlling doctrine as to what constitutes obscenity. In the Miller case the Court considered whether California could convict Marvin Miller, the Covina-based “King of Smut,” of a misdemeanor under state obscenity law for distributing unsolicited brochures featuring sexual content. What kind of sexual content was Miller distributing? The Court explained that the brochures contained “some descriptive printed material” but also — this is the naughty part — “pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.”
And what did the Court say about these naughty pictures and drawings, which would make the average American in 2019 yawn? That California had the constitutional authority to criminalize their distribution because obscenity is such a broad concept, and the disparate regions of the nation differ so much in terms of moral propriety and sexual norms, that states must have the constitutional authority to adopt their own obscenity standards. As the Court put it, “it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” (Apparently, in 1973, California was more like Maine and Mississippi than like New York City.)
As for how this relates to the letter from the congressmen to Barr, suffice it to say that the federal government and the states are not restricted in any sense under the First Amendment in how they choose to regulate material found on today’s most popular porn sites, because in many, if not most, jurisdictions almost all of the porn that is available on these sites would be considered obscene under the Miller test. While criminalizing mere possession of hardcore pornography could raise constitutional questions under the “right to privacy,” a federal or state ban on the production, distribution, and sale of hardcore pornography would not violate the First Amendment.
The Founders and Early Case Law
A second point we should consider is how the Founders thought about the government’s role in regulating obscenity. In his recent book The Political Theory of the American Founding, Thomas G. West of Hillsdale College surveys how the Founders conceived of law, natural rights, and the proper role of government. In chapters 9 and 10, he explores the extent to which the Founders favored government support of a moral order, including the government’s promotion of Christianity and its encouragement of family formation and child-rearing within faithful marriages. From an extensive survey of America’s Founders, West concludes that there was a broad consensus (though not uniform agreement) that the government not only may but should prohibit any speech that tends to undermine adherence to the Christian faith and traditional family relations — the twin pillars of the American social and moral order.
Given the federal government’s limited regulatory role during the Founding era, state courts were the primary venue for early 19th-century-obscenity cases, such as the well-known 1811 New York blasphemy case in which James Kent, the prominent legal scholar and chief justice of the New York Supreme Court, wrote that New York had authority to criminalize “things which corrupt moral sentiment, as obscene actions, prints, and writings.”
Some important federal cases emerged with the passage of the 1873 Comstock Act, a federal law that prohibited using U.S. mail to distribute various sex-related materials, including pornography. One such federal case was U.S. v. Bennett (1879), which involved Cupid’s Yokes: Or, the Binding Forces of Conjugal Life, a book that promoted nonmarital sex and was authored by the noted abolitionist, suffragist, and anarchist Ezra Heywood. In a separate federal case in a U.S. district court in Massachusetts, Heywood had been found guilty under the Comstock Act. The Bennett case, which arose out of New York, involved the question whether D. M. Bennett could be punished under the Comstock Act for using the U.S. postal service to distribute Heywood’s book. In an extensive discussion of the nature of obscenity, the district court found that Bennet could be punished under the Act because a “book is said to be obscene which is offensive to decency or chastity, which is immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency.” The book’s celebration of nonmarital sex satisfied that definition.
Another important federal obscenity case was U.S. v. Harmon (1891), a case raising the question whether Moses Harman (the court misspelled his name) could be punished under the Comstock Act for publishing his pro-sex and anti-Christian journal Lucifer, the Light Bearer. In a lengthy discussion of whether the Comstock Act was constitutional, Judge John Philips of the U.S. district court for Kansas noted that “familiarity with obscenity blunts the sensibilities, depraves good taste, and perverts the judgment,” so that those who view obscenity are less capable of seeing the distinction between good and evil. For people who have lost the ability to avert their eyes from evil, “the government should perform the office for them in protection of the social compact and the body politic.” The government’s regulation of obscenity, the court concluded, is therefore not only constitutional but essential to the political order.
Finally, for those who find all of this 18th- and 19th-century thinking about obscenity anachronistic, it is important to see just how relevant it is for how we think about pornography in 21st-century America. In many ways, the Founders and jurists mentioned above saw the world of obscenity and moral order more clearly than we do now.
This is because our lenses have been distorted by the very subject we are trying to analyze. We inhabit a world saturated with the most salacious images imaginable. As a result, we cannot clearly see the harm they have created within our lives. Indeed, there is mounting scientific evidence that Judge Philips in Harmon (1891) was precisely right that “familiarity with obscenity blunts the sensibilities.” Pornography invades our neurological circuitry and transforms how we view sexual intimacy, other people, and ourselves. This impairment makes us unreliable regulators of our own behavior.
Likewise, parents cannot be made solely responsible for protecting their children from the relentless onslaught of sexuality pervading the Internet and social media. I speak personally here. I have three little children, and my wife and I are trying to protect them from the harms described above. But we realize that, while we can control their Internet access within the home, the larger task is ultimately Sisyphean, given that most of their peers will have viewed hardcore pornography by the time they enter junior high school. There is only so much that even the most informed and deliberative of parents can do to insulate their children.
When we think about obscenity, Judge Philips wrote, we should ask one fundamental question: “What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls, — the family, which is the common nursery of mankind, the foundation rock upon which the state reposes?”
With respect to porn regulation in a nation that hosts about 60 percent of the world’s Internet pornography — a nation in which two of the ten most visited websites are pornographic, a nation that leads the world in single-parent households, and a nation with illegitimacy rates approaching 50 percent — this is the right question to ask.