Everybody Loves Porn
Although the country is calling for immigration reform and gun legislation, two states have decided to begin the discussion that they feel is really putting the country at risk: pornography. Hold onto your lap(tops); they are coming for your porn.
The rationale for restricting access to legal pornography is now being framed as a concern for public health and safety. Although it hasn’t quite caught fire across the nation, early warning signs are indicating that this is the next fight in the culture wars.
In Utah, a state that is staunchly Republican and Mormon, the fight against porn has been a bumpy one since 2000 when the legislatively appointed “porn czar” found that most of their time was spent explaining the First Amendment to porn objectioners than actually protecting the public from porn. In 2016 Utah switched it’s approach to focus more on the “health hazard” they say it presents. Lobbying groups and legislators claimed that pornography was as addictive as tobacco and equated to violence against women and children as well as increased demand for sex trafficking and prostitution.
It is no coincidence that Utah was the laboratory for this legislation. The state demographically presents a friendly environment for these restrictions on First Amendment rights. The strategy here is that by approaching these restrictions from the perspective of public health and safety it will allow them safer passage to become law as opposed to the more Puritanical finger-wagging approach. It should be noted that Utah, according to a 2009 Harvard Business School study, is home to the highest per capita purchasers of online adult entertainment in the United States.
This approach has now gained some traction in Florida. As recently as Monday the state House failed to consider a ban on AR-15’s but did manage to consider a resolution declaring pornography a more immediate and apparent risk to public health. The move proved to be controversial considering the massacre of 17 students and teachers the previous week in Parkland by a gunman toting an AR-15. The claim law makers that are pushing this legislation are making is that porn presents a more immediate risk to public health. Republican State Representative Ross Spano cited research detailing a connection between pornography use and mental and physical illness, forming and maintaining relationships and deviant sexual behavior. Research that seems eerily similar to the claims made in Utah.
This approach to restrict porn is actually a methodical strategy being implemented, and it is a successful one. Similar approaches have been used to restricting abortion access. In many red states, like Texas, legislators have tried to limit access to abortion by limiting the providers of those services rather than the permission to women to have them. Public health and safety are often an effective legal loophole by which restrictions on tobacco, drugs, guns, and alcohol are deemed permissible by the courts. There may be one problem with this restriction on legal pornography though. Americans may be split about abortion, but they love their porn; especially in Utah!
Everybody loves porn. Even the Supreme Court came to the conclusion that although “hard-core pornography” may be objectionable to some, it cannot be restricted without meeting a three-prong test established in the 1973 case Miller v. California. Those prongs are:
The average person, applying local community standards, looking at the work in its entirety, must find that it appeals to the prurient interest.
The work must describe or depict, in an obviously offensive way, sexual conduct, or excretory functions.
The work as a whole must lack “serious literary, artistic, political, or scientific values”.
The wisdom of the court here acknowledged local standards in the first two prongs while giving deference to the courts to make a final determination on the third prong. What has survived since then is a multi-billion dollar industry that is consumed by almost every American.
It is important not to conflate legal pornography with illegal acts. Anything that involves criminal abuse or activity or adults, children, animals, etc. is not the same as legal pornography. It is wrong and should be, and is, prohibited and criminalized by the state. Those acts would also fall under the exceptions established by the court’s test. By in large, most Americans are consuming pornography that, although considered distasteful by some, is not illegal.
The larger concern here is not that Utah and Florida are taking the first steps to take away your porn; although they are. It is that it is happening quietly right under our noses and speaks to the larger issue of First Amendment rights. The double-edged sword of the First Amendment is that in the United States we are allowed to say what we want and that luxury is conversely extended to those that disagree with us. If we synthesize what is currently bubbling up in Utah and Florida with what has already transpired with access to abortion, it is clear that this approach will be effective at eroding our First Amendment rights and that, my friends, is called a slippery slope.
Anti-abortion laws have effectively closed down a majority of the clinics that provide abortion services in the states that have promulgated those laws, like Texas. Do women still have access to abortion in Texas? Yes. Is it limited to only a handful of clinics only in major cities? Also yes. The legislation effectively ends the right to access by closing down the providers via health and safety restrictions. It’s death by a thousand cuts, but the end result is still death.
If legislation starts to approach porn as a health risk then that means it will need to start defining which type of porn is “healthy” and which is “unhealthy”. It will clarify the local standards for what is obscene to the point where eventually it will create a society where the third prong is more easily met by the courts because the society is more Puritanical in nature.
But these approaches, while eradicating one evil, have symptoms that actually have more profound effects on the overall public health. Let’s go back to the restrictive anti-abortion laws in Texas. the clinics that formerly provided abortion services that have now closed provided much more than just access to abortion. They provide well-women exams, general treatment for colds and flus, STD prevention and treatment, early detection for cancer, etc. When the clinics close they stop providing abortions, it’s true, but they also stop providing every day services that create a healthy community.
Focusing back on pornography; when the community starts dictating what is and is not acceptable then they can start chipping away at other forms of expression. Who is to say that a nude study in an art class is not porn if nudity itself is considered offensive?
Doing away with porn will not do away with sex any more than doing away with abortion stops abortions or the prohibition of alcohol and tobacco will people from drinking and smoking. Porn, smokes and cocktails serve a purpose, although unsavory to some. That purpose is a release. (No pun intended.) Just because you put a lid on a boiling pot does not mean the water stops boiling.
Although this argument may seem like a stretch in America as we know it, we have seen that lobbyists and legislators on the fringe of the political spectrum are becoming increasingly more adept at finding out how to limit things they find subjectively offensive. While you’re worrying about the Second Amendment, Florida, you should probably be more worried about your First.
