Academic journal article Emory Law Journal

The Problems with Pornography Regulation: Lessons from History

Academic journal article Emory Law Journal

The Problems with Pornography Regulation: Lessons from History

Article excerpt


"A page of history is worth a volume of logic."

-Oliver Wendell Holmes, Jr.1

There is a growing anti-pornography movement, inspired by the ready availability of pornography on the Internet.2 The movement still includes critics who object to pornography on the traditional bases: that it injures the moral tone of society, corrupts immature minds, and leads to rape and other sexual crimes.3 It also includes the newer arguments of feminists that pornography furthers the subordination of women.4 Now both groups seem to be coalescing behind a new approach, illustrated in the 2016 Concurrent Resolution passed by both the legislature and Governor of Utah, which asserts that "pornography is a public health hazard leading to a broad spectrum of individual and public health impacts and societal harms."5 Among these harms are the old claims that pornography corrupts public morals and young minds and leads to violence and discrimination against women.

This is not just old wine in new bottles with new labels, however. The Resolution also includes the new claims related to the widespread availability of Internet pornography, even to children.6 Critics point to statistics showing that pornography sites are among the most visited online;7 that most men visit them at least on occasion (and some far more than that);8 and that these sites are available even to prepubescent children and have become de facto sex education for many.9 At the same time, much Internet pornography now features far more than ordinary sex acts, and especially portrays women in demeaning and even violent sex.10 Critics claim that the ubiquity of Internet pornography has "pornified" our culture and "hijacked our sexuality," in the words of Professor Gail Dines, a leading feminist critic and proponent of the new public health arguments.11 She and others point to research suggesting that pornography is negatively affecting sexual relationships, as viewers expect sex partners to submit to degrading and even violent sex acts they have viewed.12 In other cases, men have not been able to enjoy healthy sexual relations with women, as real sex partners cannot compete with those online.13 Other men have substituted watching pornography for sex with real women altogether.14 Women report having less sex, and less satisfying sex, with their partners.15 It gets worse. Critics cite psychological harms from watching too much pornography.16 Some claim that watching pornography actually physically alters the brain and can even lead to an addiction to pornography.17

As a discerning journalist wrote at the time of the Utah Resolution, the new public health claims are a shrewd way for anti-pornography advocates "to modernize their arguments" and emphasize the ubiquity of pornography on the Internet "to tie it to headlines of sex gone wrong."18 According to antipornography activists: "[t]een sexting. Tales of porn addiction. Campus sex assaults. Divorce. Hypersexualized teens. Barely clothed pop stars. Sexual violence. All these problems can be tied back [to] 'young men [who] have been getting a regular diet of rampant pornography since their adolescence.'"19

The new public health crisis approach thus provides an umbrella under which both the feminist and conservative sides of the current cultural divide can find common ground on pornography. Cultural conservatives still argue that pornography must be curbed on moral grounds, but also endorse the new public health arguments and find common ground with the feminist argument that pornography portrays women as sex objects to be dominated.20 Feminists like Professor Dines combine the new public health claims with the feminist arguments pioneered by Andrea Dworkin and Professor Catharine MacKinnon, implemented in their famous Indianapolis ordinance.21

These claims are disputed, of course. Some social scientists claim that pornography actually reduces sexual violence, as it provides a release for harmful impulses. …

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