Fighting the Pornification of America by Enforcing Obscenity Laws

By Hatch, Orrin G. | Stanford Law & Policy Review, Winter 2012 | Go to article overview

Fighting the Pornification of America by Enforcing Obscenity Laws


Hatch, Orrin G., Stanford Law & Policy Review


INTRODUCTION

Simply put, we know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families, and communities and the problems are only getting worse. As you know, adult obscenity is not protected by the First Amendment. Congress has for decades passed laws seeking to curb the production and distribution of obscene pornography, including on the Internet. A consistent and strong commitment to enforcing these laws can have a significant impact. (1)

In 2001, Esquire magazine described "the pornographication of the American girl" (2) in its profile of a former pornographer. Four years later, author Pamela Paul testified before the U.S. Senate Judiciary Subcommittee on the Constitution about how our lives, relationships, and families have become "pornified," a term that became the title of her recently published book. (3) More recently, the Boston Globe described the "pornification of America" this way:

   Not too long ago, pornography was a furtive profession--its
   products created and consumed in the shadows.... What is new and
   troubling, critics suggest, is that the porn aesthetic has become
   so pervasive that it now serves as a kind of sensory wallpaper,
   something that many people don't even notice anymore. (4)

Some say that because of shifts in culture and technology, "pornography has already won." (5)

Sadly, pornography "is so commonplace that for many it is merely an annoyance." (6) It may indeed be "the new metaphor" and "the new universally shared experience." (7) But pornography is not simply a matter of taste; It is a matter of harm that is magnified because today's pornography is more extreme and more readily available than ever. Limiting its negative impact on individuals, families, and communities requires a comprehensive approach. This Article focuses on something that both federal and state government can do as part of the solution. Government can enforce existing laws that prohibit obscenity, a defined category of pornography that is not protected by the Constitution.

These laws have not been seriously enforced for a long time. The 1986 Attorney General's Commission on Obscenity and pornography noted that, "with few exceptions the obscenity laws that are on the books go unenforced." (8) During the Clinton administration, federal prosecutions fell by more than half, with only twenty cases in the year 2000. (9) The National Research Council of the National Academy of Sciences noted in 2002 that, "obscenity prosecutions have been relatively rare." (10) In April 2011, a bipartisan group of forty-one Senators joined me on a letter to Attorney General Eric Holder urging stronger enforcement of federal obscenity laws. (11) A few weeks later, he told the Senate Judiciary Committee that "since we have been in office, seven obscenity cases have been brought that have involved only adult pornography." (12) The excerpt from our letter to Attorney General Holder quoted at the beginning of this Article captures the case for such enforcement. These laws should be enforced because this illegal material is harmful.

I. ADULT OBSCENITY IS ILLEGAL

The First Amendment prohibits Congress from making any law "abridging the freedom of speech." (13) This guarantee was the first clause of the Bill of Rights that the Supreme Court applied to state and local governments. (14) In Roth v. United States, the Supreme Court cited cases dating back to 1877 to show that this Court has always assumed that obscenity is not protected by the freedoms of speech and press." (15) The Court thus held in Roth that "obscenity is not expression protected by the First Amendment" (16) and has reaffirmed this principle many times. (17)

A content-based restriction on expression that is protected by the First Amendment is "presumptively invalid. …

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