The Case for Wielding Obscenity Laws against Online Pornography
An interview with Robert P. George
[This article was authored by Zachary Evans.]
In the midst of a debate among conservatives about whether, and to what extent, the government should curtail online pornography, Professor Robert P. George of Princeton on Monday urged the Justice Department and U.S. Attorney General William Barr to enforce existing obscenity laws as a means of combating access to porn.
In the letter, George accuses the DOJ of abdicating its responsibility to prosecute obscenity in online content and asks that the attorney general clarify the department’s position on whether pornography is obscene and as such subject to regulation.
The desire for the Justice Department to deepen its involvement in prosecuting breaches of obscenity law has existed for some time. In 2017, Patrick Trueman, the head of the National Center on Sexual Exploitation and a former chief U.S. prosecutor for the Child Exploitation and Obscenity Section at the Justice Department, wrote that “we are in the midst of a public health crisis caused by pornography, a crisis that could have been prevented by the enforcement of obscenity laws.” In December 2019, four House Republicans urged Barr to begin prosecuting obscenity cases, after Obama AG Eric Holder had disbanded the Obscenity Prosecution Task Force at the Justice Department.
The Supreme Court has ruled on several cases involving violations of obscenity law, most crucially Miller v. California, which established the “Miller test” for judges and jurors to determine if material can be classified as obscene. In the intervening years, advocates of a more lenient anti-pornography regime have criticized the ruling for its vagueness and for standards that they argue have proven too difficult to implement.
In a separate criticism of the push to prosecute online porn through obscenity laws, Katherine Mangu-Ward, chief editor of Reason magazine, told Vox that such a move would be antithetical to the conservative movement. “What you’re seeing now is this rise of a much more authoritarian and state-oriented variant of conservatism and it just says, ‘You know what? Actually, never mind. Let’s take away the bad choices. Let’s make some bad choices illegal,’” Mangu-Ward said. “This has long been a characteristic of the American left.”
Nevertheless, conservatives including Sohrab Ahmari, opinion editor of the New York Post, and Matt Walsh of the Daily Wire have advocated for increased legal action against online porn. Following the publication of his letter to Barr, I spoke with George to elucidate some of the issues at hand, and to see how, and for what reasons, he believes obscenity laws should be enforced in the Internet age. The following transcript has been slightly condensed and edited for clarity.
Zack Evans: Do you think a push to prosecute online pornography through obscenity laws can succeed?
Robert P. George: Yes, I do. I think it’s now widely understood because of people’s personal experience — that is to say, so many people’s lives have been harmed by pornography. I think because now people are aware of what a serious problem it is, it’s possible to build a movement that will be politically efficacious in not only enforcing our currently existing obscenity laws, which is something long overdue and much needed, but also strengthening those laws.
Evans: Is there a danger that a movement like this could dissipate over time, like 1930s Prohibition laws?
George: I very seriously doubt that that would happen. There are no harmless and innocent uses of pornography, it’s bad through and through. Alcohol addiction is a serious problem — that’s what motivated prohibition — [and] it’s also true that there are very bad effects from alcoholism beyond addiction, including family abandonment, domestic violence, etc. But there are also entirely innocent uses of alcohol, and people who were using alcohol responsibly resented Prohibition. So, I don’t think the two cases are parallel.
We had a tradition in this country, which was successful, of combating pornography or obscenity. This was well before the rise of new, contemporary technologies, online technologies, electronic transmissions. And that was not overthrown by the people rising up against it — quite the contrary. It was undermined by judges who, exercising, really abusing, their authority under the Constitution, decided that they would advance pornography as part of a secular, progressive ideological agenda, pushing sexual revolutionary ideology. So that’s another way in which the case is entirely unlike Prohibition.
Evans: Is there a specific case that was influenced by such ideology?
George: There were a series of cases in which the courts weakened pornography laws, citing the First Amendment in a way that I think was utterly implausible . . . certainly from an originalist point of view. But even the court in those cases did not go so far as to say that obscenity was protected speech. To this day, even the most liberal Supreme Court justices continue, rightly, to hold that obscenity is not strictly speaking protected by the First Amendment. What those cases did was narrow the sense of what could count as obscenity, thus in effect liberating the producers of obscene materials to produce a profit from them.
Evans: Is that one of the reasons you asked, in your letter to Attorney General Barr, how the Justice Department defines “obscenity”?
George: I asked what the policy of the Justice Department is on the application of existing laws toward product transmission of obscene materials. And then I urged him to more vigorously and systematically enforce the existing obscenity laws. So, before we even get to the question of whether obscenity laws ought to be strengthened, we need to enforce the laws; DOJ needs to enforce the laws that are already there and that have passed constitutional muster, that have survived constitutional challenges.
Evans: The more libertarian wing of the conservative movement may not want to “legislate” this kind of morality. What would you say to someone who holds that perspective?
George: Read my book, Making Men Moral: Civil Liberties and Public Morality, which attacks the idea that there can be morally neutral law, or laws that are morally neutral. There is morality that’s embodied in virtually every kind of law, not only criminal law, by the way, but in much of our civil law. So, the idea of moral neutrality in the law is myth, and . . . it’s past time that we recognize that as myth, stop asking whether the law should embody a [kind of] morality and start asking what morality the law should embody.
Evans: Do you think that this debate has any connection to traditional conservative fears of government overinvolvement in the life of citizens?
George: There would be no need to create some huge new bureaucracy. What we need are laws that are like the laws in lots of other areas, that regulate human affairs to protect public health, safety, and morals. What I pointed to here is the fact that we can no longer claim — it’s just impossible to claim — that porn is harmless naughtiness, or that it is a purely private matter that has no impact on public interests or public concerns. We know that the pornography business is built on the exploitation of women, often the trafficking of women into a form of sexual slavery. We know that pornography addiction is a huge problem with massive social consequences. So porn is a public-health and public-safety issue as well as a public-morality issue, and what we need are ordinary laws to regulate it, which we had before the Supreme Court began its adventures with liberal judicial activism in the late 1960s.
Again, I’m not proposing some huge new bureaucracy, some new government program. I’m not proposing to usurp the authority of families or churches the way so many liberal and progressive programs do. I’m saying, let’s assist families and churches and other institutions in civil society that have primary responsibility especially for bringing up children and transmitting virtue to each new generation. Let’s assist them to keep obscenity especially out of the hands of children, who can easily access it now online, on their smartphones, on their laptops, on their desktop computers . . .
And let’s take seriously, in a way we haven’t before — and it’s high time that we did — the fact that much porn is produced by the exploitation of women; that the messages that porn sends to people, especially to men young and old alike, is a fundamentally misogynistic message. It’s the message that women are objects, that they are to be exploited. This has social consequences [for] men and boys. There are real social harms with this [material].