Defending Access to Porn

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Sex Tech Law Defending Access to Porn

Pornography has dealt with a long history of taboo, regulation, and just plain judgment. No one admits that they watch it. Governments continually try to stop it. Search engines try to block it. Even in the face of all of these obstacles, the porn business has grown to become a multi-billion dollar industry. The market demand for it appears to be simply insatiable. Governments, however, are still attempting to restrict it, with the State of South Carolina recently jumping into the mix.

The choice as to whether to watch porn is certainly an intimate one. I, for one, do not typically watch porn. It’s not that I think that it is bad or harmful; it just doesn’t usually turn me on. I say this, not at all to degrade or demean the industry. In fact, it is quite the opposite – I wholeheartedly defend the porn industry… For reasons far greater in importance than the pursuit of my own personal interests and tastes. The reasons go to the heart of the foundations of the United States, as a country based on values of freedom and diversity, where the sharing of ideas is welcomed, encouraged, and necessary.

The framework for the government of the United States is based on the U.S. Constitution. The Constitution has been amended several times since its inception on September 17th, 1787. Written by James Madison, the first 10 of those amendments, together, make up the Bill of Rights. The Bill of Rights guarantees the citizens of our great country, the right to free speech, the right to be protected from illegal search and seizure, and the right to a jury trial, among others. These and other rights set forth by the Constitution are so very important, since without them we are in danger of a dictatorial rule.

The First Amendment recites:

Congress shall make no law … abridging the freedom of speech…

Pornographic material is a type of speech. Not everyone may like that speech, but it still is a statement, and should be fully entitled to the protections of the First Amendment. Or so it would seem…

It is not that simple though. A wrinkle in the sheet (pun intended) is that the Supreme Court of the United States, the highest court in the land, has held that “obscenity” is not protected by the First Amendment. This was the holding of the 1957 landmark case of Roth vs. United States, 354 U.S. 476.  In that case, the Court upheld the conviction of Sam Roth, a publisher and distributor of magazines and books, for violation of a federal statute criminalizing the sending of “obscene, lewd, lascivious or filthy” materials through the mail.

In 1964, in the case of Jacobellis v. Ohio, 378 U.S. 184, the U.S. Supreme Court held that the Constitution protected all obscenity except “hard-core pornography.” Former U.S. Supreme Court Justice Potter Stewart, wrote in his concurrence, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hard-core pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…”. This quote lives on in infamy due to the obvious subjectivity of the standard.

In 1973, in the case of Miller v. California, 413 U.S. 15, the U.S. Supreme Court established a three-tiered test for determining whether speech qualifies as “obscene”, and therefore, subject to prohibition by the government. In the opinion of the Court, Chief Justice Warren Burger wrote that the basic guidelines for the trier of fact must be:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S. 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This test is now known as “The Miller Test.” A discussion of the nuances of the test is beyond the scope of the discussion here, and is instead saved for another article on another day. I believe that under moral standards of today, much of porn would survive The Miller Test, and accordingly, not be considered “obscene.” Therefore, such non-obscene content would be protected by the First Amendment, and could not legally be restricted by the government.

Some of you may be thinking, “Well, porn encourages or facilitates human trafficking.” You would not be alone in that thought. Currently, in South Carolina, the legislature is considering a bill called the Human Trafficking Prevention Act, which would effectively require manufacturers and retailers of personal computing devices sold in the state to have a blocker of “obscenity” installed on such devices. The blocker would only be disabled if the user pays a fee, essentially a tax, of at least $20. Section 16-15-305 of the South Carolina Code of Laws defines “obscenity” similarly to (but not exactly the same as) the prongs of The Miller Test.

On its face, the South Carolina bill might sound benign, but the reality is that it would be a massive impingement on our right, as citizens, to free speech. The South Carolina bill could potentially blanket block all or a substantial portion of pornographic content, much of which again, under today’s standards, would protected, as not considered “obscene.” The bill outlines a process to unblock material mistakenly blocked, but this is of little consolation. Quite literally, the blocked speech is no longer free – the government would be imposing a tax for a person to be allowed access to third party, privately owned and created content. This translates to government restricting dissemination of protected speech, which I submit is facially unconstitutional.

The fee, according to the bill, would go to efforts to fight human trafficking. I agree that human trafficking is a horrible and disgusting crime, and it should be fought tooth and nail. However, the efforts should be funded in ways other than charging $20 for access to porn. The $20 tax is an encroachment on the general population’s freedom of speech, which is guaranteed by the U.S. Constitution.

Some of you may be thinking, “Well, porn creates addiction.” Yes, I would not contest that some people become addicted to porn. But it is also a fact that some people become addicted to alcohol. This does not mean that the government has gotten away with banning it. Prohibition in the U.S. in the 1920’s failed miserably. Similarly, we are now seeing marijuana being slowly legalized for recreational use basically because of a movement of the people. For a small percentage of people, alcohol or marijuana becomes an addictive need, but that should not mean that the entire population should therefore be completely denied access to the product. The same logic should apply to pornography.

As compared to alcohol, I would argue that pornography should actually be given an even wider net of protection since, as a form of speech, much of it is protected by the free speech clause of the First Amendment. If the government is allowed to regulate what type of speech should be freely available and what type should not by imposition of a fee, then where does the dividing line fall? Perhaps, in addition to a tax on access to porn, there should be a tax imposed to access financial news sites. This fee could be used to fight white collar Wall Street crimes. Perhaps, there should also be a tax to access websites about pregnancy and birth because the fee could be used to fight against child abuse and molestation cases. The fee for removing the “obscenity” blocker should be as shocking to the conscience as these other hypothetical scenarios. So, the South Carolina bill should be on every U.S. citizen’s radar, regardless of his/her decision to watch porn or not, since it has the potential to have echoing effects on speech not only on the adult industry, but far beyond.

In time, the bill will work its way through the state legislature. I normally end my articles with a joke to “end on a high  note,” but I’ll refrain here considering the stated purpose of the law is to fight the extremely serious issue, and egregious crime, of human trafficking. Hopefully, the State of South Carolina can find another way to further that goal without burdening the free speech right our forefathers promised to us.

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