DANIEL VAUGHAN: Pornography is a cultural problem – and free speech

The conservative commentariat class was abuzz this past week over the topic of pornography. National Review journalist and writer Alexandra DeSanctis got a major scoop:

Four House Representatives wrote a letter to Attorney General Bill Barr, provided exclusively to DeSanctis, requesting that he “declare the prosecution of obscene pornography a criminal justice priority” and pursue the porn industry under obscenity laws.

The letter lays out a brief, but concise, statement of the cultural problem of pornography. And on those counts, I’m in full agreement.

You don’t have to look hard to find relationships ruined by porn, or lives affected by the easy dissemination of it. On the point of porn being a problem, I’m in full agreement with those members of Congress, and with conservative critics on the spread of pornography.

Conservatives have a long history of confronting the spread of porn. William F. Buckley, Jr. debated Hugh Hefner in 1966 on his show Firing Line, where he blasted the “Playboy philosophy” as being detrimental to the country.

Buckley did this while also trying to reach the audience of Playboy by writing columns for them. And, of course, there’s the long history of evangelicals and conservative Catholics confronting the issue through various means of legislation and boycotts.

The problem isn’t in identifying the issues that porn brings with it. The problem is developing a legal standard that constrains the pornography industry while also not violating free speech protections.

Many proponents of porn bans will say they only want to ban “hardcore pornography.” But no one has ever been able to come up with a firm standard for what that is — it’s a phrase without meaning.

Justice Potter Stewart famously summarized his attempt at defining hardcore pornography in the 1963 case, Jacobellis v. Ohio, writing:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hardcore pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [emphasis added]

And that’s how we got the phrase, “I know it when I see it,” in common parlance. The Supreme Court eventually settled on the Miller test, named after the case Miller v. California.

The case laid out a three-prong test for determining whether something is obscene or not. One of the principles at play is a community standard; the Court recognized that what was considered obscene varied across different states and communities.

The main issue in regulating porn is finding the line where the rules only target pornography companies and don’t rope in art or speech that involve nudity or sex. For instance, everyone generally agrees that the statue David by Michelangelo is not porn, even though it’s a sculpture of a naked male body.

How do you create a standard that says this thing is art, but these other things are not? Conservative and Catholic Supreme Court Justice Antonin Scalia remarked that this was mostly an impossible task. He wanted the court to revisit the Miller test because it has many problems, but he also said:

I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide “What is Beauty” is a novelty even by today’s standards.

Pornography takes many forms. It can be visual, auditory, or in written form, through books. When you’re talking about the power of government censorship to target this form of speech, you’re giving the government power to ban or censor these books, movies, and recorded audio or music.

Romance novels that use fiction to paint vivid mental scenes of a pornographic nature can have just as much impact on the human mind as any hardcore pornographic film. An audio recording where two people engage in sex or sexually explicit conduct can have the same effect as well.

Much music on the air today deals with sex or the naked human form. It’s popular on the right to say rap music does this — but other forms of music are just as explicit or in code. The Beatles wrote a song for their White Album called “Why Don’t We Do it in the Road?”

The band DNCE, which has a Jonas Brother in it, had a popular song on the radio a few years back, “Cake by the Ocean,” that was also explicitly about sex — yet it topped the charts.

Many movies have sex scenes in them, as do many books. At what point do you cross the line from the artistic portrayal of sex and into pornography?

One of the most popular shows in recent memory was Game of Thrones, which openly depicted sex, rape, and incest — all in book and television via HBO. That show was a rating smash hit, and many of those who want restrictions on porn happily watched it.

The point is this: defining what porn is to restrict it will inevitably give the government the power to ban other forms of expression. That is a perilous power to have, which is why we have First Amendment protections.

I’m fine with the Justice Department and attorney general using current frameworks to try and rein in the spread of pornography. But the problem is less with that, and more to do with the fact that we have a culture that has internalized and accepted what Buckley warned about for decades: The Playboy Lifestyle.

Countering that requires far more than just censoring porn. You could ban porn overnight and still have a widespread problem that no ban could fix.

The solution involves cultural renewal.