The Politics of Pornography

Elizabeth Smart has become a public face for a new strategy to frame hard-core porn as a public-health issue, and it has also become a topic of discussion in the presidential election campaign.

Elizabeth Smart discusses the role pornography played in her abduction and sexual assault as a 14-year-old, in a video posted by
Elizabeth Smart discusses the role pornography played in her abduction and sexual assault as a 14-year-old, in a video posted by (photo: YouTube/Fight the New Drug)

Pornography may have crossed over into mainstream pop culture more than a generation ago and is considered by many today to be a harmless indulgence. But activists are hopeful that a new strategy to frame hard-core porn as a public-health issue will start to change how people think about it.

Elizabeth Smart, who in 2002 was kidnapped at the age of 14 in Utah and raped daily during her ensuing nine months of captivity by her captor, became a prominent face for this anti-pornography campaign in late August: In a new video in which she discusses her sexual abuse, Smart recounts that her kidnapper was fixated on explicitly sexual media and would violate her even more frequently after viewing it.

“I can’t say that he would not have gone out and kidnapped me had he not looked at pornography,” Smart says in the video, posted by “All I know is that pornography made my living hell worse.”

“I have gone on to become an advocate for abuse prevention, an advocate against pornography — I witnessed firsthand just how damaging it is,” she comments later in the video.

The issue of pornography’s damaging consequences, and what can be done to control them, has also become a presidential election issue.

The 2016 Republican Party platform declares pornography, with all of its harmful effects, especially on children, to be a public-health crisis that is “destroying the lives of millions” and facilitating sex trafficking. The GOP urges states to continue to fight the “public menace.”

By contrast, the Democratic Party platform in 2016 does not specifically mention pornography, but it does say that the party is committed to protecting vulnerable people, especially children, from sex trafficking and modern slavery.

Meanwhile, Donald Trump, the Republican presidential nominee, has signed a pledge to combat Internet pornography, and his opponent, Democrat Hillary Clinton, has signaled her support for the same pledge, raising hopes that the federal government could again start enforcing its anti-obscenity laws. To date, however, Clinton has declined to sign the pledge.

“Because we now have an online culture that breeds the sexual exploitation of children, because the laws have not been aggressively prosecuted and the burden has been placed solely on the shoulders of parents, it’s time for the next president to take this up as a mantle and lead on this issue,” said Donna Rice Hughes, the president and CEO of Enough Is Enough, a national nonprofit that focuses on Internet safety for children and families.

Hughes and others who have studied the issue told the Register that the federal government, particularly the U.S. Department of Justice, in recent years has effectively turned a blind eye and opted not to prosecute hard-core, violent, degrading pornography, much of it available online, that would likely qualify as obscene in federal statutes.

“It is illegal to distribute obscene materials, but we need the U.S. Department of Justice to step up and actually enforce these laws to protect the general public,” said Arina Grossu, the director of the Center for Human Dignity at the Family Research Council.

Similar to defamation, libel or slander, obscene speech is not protected by the First Amendment of the U.S. Constitution.

“Today’s pornography is extremely violent, hard-core, and it is obscene by any measure, and we should be using these laws” to prosecute, said Mary Graw Leary, a law professor at The Catholic University of America. Leary told the Register that a great deal of the existing top-consumed pornography would meet federal standards used to define what is obscene.

“A problem is that the mainstream media uses pornography and obscenity interchangeably, and they are not synonymous,” Leary said.

The Catechism of the Catholic Church, in Paragraph 2396, describes pornography as a “grave offense,” and it says that civil authorities “should prevent the production and distribution of pornographic materials.”


First Amendment Issues

In the United States, government efforts to restrict or prohibit pornography are complicated by First Amendment-related case law in the federal courts. In addition, the word “pornography” does not have a set legal definition. In 1964, U.S. Supreme Court Justice Potter Stewart, memorably commenting in Jacobellis v. Ohio, could not provide a definition of pornography other than to say, “I know it when I see it.”

In 1973, the Supreme Court, ruling in Miller v. California, established the so-called “Miller Test” to determine what can legally be considered obscene. Under a three-pronged examination, the average person, applying community standards, would have to find that the work appeals to the prurient interest; that the work, taken as a whole, lacks any serious artistic, political, literary or scientific value; and that the work depicts or describes, in a patently offensive way, sexual conduct defined by the applicable state law.

In the years since then, the federal courts have used the Miller Test to determine that nudity alone does not qualify as obscene and that “soft-core” publications such as Playboy and Penthouse, or soft-core pornographic movies and books, are also not obscene. In California, where many pornographic film studios are based, the California Supreme Court ruled in 1988 that the production of so-called adult films was protected speech under the First Amendment.

The previous case law is not to suggest that legally obscene material is no longer being produced, but observers said there has been a growing reluctance at the state and federal level to investigate and prosecute adult, hard-core pornography that often depicts violent, deviant and disturbing content.

Most state-level district attorneys, faced with limited resources, have chosen not to prosecute adult-obscenity cases, but have, instead, often aggressively, gone after child pornography, which is illegal, does not enjoy First Amendment protections and is by and large rejected by the general public.

“When I was a prosecutor, I was sympathetic to the judgment call that if I have to choose between obscenity and a child-pornography case, I’m going to go with the child-pornography case because that’s a real child being victimized there,” Leary said.

In addition, public pushback, abetted by mainstream-media coverage and a multibillion-dollar pornography industry, has dampened the political will to attack obscene materials. Leary added that there were novels and works of art that were subjects of past prosecutions that hinder efforts to convince the public and the courts that there are still obscenity cases worth prosecuting.


Obama Administration’s Inaction

Meanwhile, at the federal level, former U.S. Attorney General Eric Holder in early 2011 ended the Department of Justice’s Obscenity Prosecution Task Force, which President George W. Bush had initiated in 2005. According to the National Center on Sexual Exploitation, the Justice Department has not initiated any new enforcement actions against adult-obscenity cases since President Barack Obama took office in early 2009.

The National Center on Sexual Exploitation has previously named Holder and now the U.S. Department of Justice on its “Dirty Dozen List,” which catalogs the top promoters of and contributors to sexual exploitation in America.

“At this point in the evolution of the porn industry, nearly all hard-core pornography on the Internet today would probably be open to prosecution under the obscenity laws,” said Haley Halverson, director of communications for the National Center on Sexual Exploitation.

Various studies indicate that today’s hard-core pornography is far more violent and degrading than the “dirty magazines” or “adult films” of years past. A 2010 analysis of the 50 most popular pornographic videos found that 88% of the scenes contained physical violence and 49% contained verbal aggression. A 2015 meta-analysis of 22 studies from seven countries found that the international consumption of pornography was associated with increases in verbal and physical aggression, among men and women alike.

Grossu, of the Family Research Council, has studied and written about pornography’s effects, which she said include biochemical reactions in the brain similar to addictive drugs such as cocaine. Pornography addiction, she said, is warping young people’s minds, hindering their ability to be intimate with a spouse and conditioning them to respond to situations of sexual violence.

“We have cigarettes with warning labels. With pornography, there is a warning label we need to have as well. We encourage a public-education campaign and more states to recognize pornography as a public-health crisis — the way that Utah did,” Grossu said.


Public-Health Crisis

In April, Utah Gov. Gary Herbert signed a resolution declaring pornography to be a public-health crisis. The resolution labels pornography a harmful “epidemic” that impacts young people in particular and “perpetuates a sexually toxic environment.” The resolution also calls on state authorities to combat pornography and recognize the need for education, prevention, research and policy change.”

Leary said that identifying pornography as a public-health issue is an important step to dealing with the problem on a societal level.

Said Leary, “We can’t criminalize our way out of the problem. The problem is not just that nobody is being held criminally responsible for disseminating obscene speech and materials. ... In order for us to address the obscene speech and pornography problem, it has to be multipronged. Looking at it as a public-health framework is an important piece.”

Hughes, of Enough Is Enough, which created the Children’s Internet Safety Pledge that Trump signed and the Clinton campaign — which has a policy of not signing pledges — said it supports, told the Register that she and other leaders developed the strategy a couple of years ago to discuss pornography as a public-health matter, given the current scientific data and studies.

“We now have indisputable, peer-reviewed science that show the negative health effects on children, on their behavior, their developing brains and on men and women,” said Hughes, adding that other states can do the same thing Utah did and aggressively enforce their existing obscenity laws.


Educating Politicians

Halverson told the Register that the National Center on Sexual Exploitation is working with a few states to help educate legislators who are interested in passing a similar resolution as the Utah measure. Next month, the National Center on Sexual Exploitation will host an international summit in Houston to address the full spectrum of sexual exploitation, including pornography.

Hughes added that protecting children from Internet pornographers, predators and sex traffickers has to begin with strong leadership at the top of the federal executive branch.

Said Hughes, “Yes, let’s talk about border security, national defense, the economy, absolutely, but we have to also talk about our families, and we have to talk about our children because they’re being hurt. The good news is that this is 100% preventable, but government leaders have to step up and do their job.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.