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Twitter has been abuzz for the past couple of days with debates among conservatives and Libertarians about online porn. With four members of Congress sending a letter to Attorney General William Barr about enforcing existing obscenity laws as promised by President Trump during the 2016 campaign, debates have been flaring up among right-leaning people about the efficacy, necessity, and constitutionality of the laws. Most of the debate comes down to two questions: Can we legislate morality and if so, should we?
Here’s the letter sent by Representatives Jim Banks, Mark Meadows, Vicky Hartzler, and Brian Babin:
There has been a strange shift in perspectives regarding pornography within conservative circles over the past couple of decades. On one side, you have those who maintain the Reaganesque perspective that adult sexual content should not be easily accessible by children. On the other side, you have the reflections of libertarianism coming from conservatives who believe the best degree of government is as low as possible, even on topics like these. Conservatives and Libertarians share a disgust for big government, but where we often ideologically deviate is in individual topics where conservatives believe government intervention is a necessary evil while Libertarians believe it’s none of their business. Porn is one such topic.
Here is a very limited sampling of some conflicting thoughts on the issue. I kept it limited because there are literally hundreds of valid threads raging on Twitter right now:
Porn defenders essentially argue that prostitution should be legal as long as there is a camera in the room and the act is published on the internet for general consumption. I find this argument not only mistaken but bewildering in its incoherence.
— Matt Walsh (@MattWalshBlog) December 8, 2019
Protecting kids from pornography is conservative
— Jack Posobiec?? (@JackPosobiec) December 7, 2019
It's really about parenting. Good parents guard their children from dangers and think ahead to ensure they're protected. Bad parents don't. Evil parents are bad parents who ask gov't to solve a problem they are either too lazy or too stupid to solve on their own.
— Austin Petersen (@AP4Liberty) December 8, 2019
50? Try five. It's sad to see so many conservatives capitulate to gay "marriage" and same sex couples adopting children. Time for a Conservative Revival.
— Mark Dice (@MarkDice) December 7, 2019
Not only can we legislate morality, but we exclusively legislate morality. Debates over everything from health care to tax rates involve moral arguments. There are few more pernicious errors in contemporary politics than the slogan, "You can't legislate morality." https://t.co/lInT5zA7f5
— Michael Knowles (@michaeljknowles) December 9, 2019
The “free” pursuit of licentiousness or hedonism is not the reason why governments are instituted among men.
— Josh Hammer (@josh_hammer) December 8, 2019
While I completely understand the distrust of government participating in anything that relates to parenting, this is not like education or medical choices in which parents should expect a reasonable level of control over how our children engage. The internet is ubiquitous and very challenging to control at every possible point of entry. Good parents can raise good kids who are still able to easily be exposed to pornography. I’ve experienced it myself as a parent, and that’s just including the incidents of which I’m aware. I’m sure there have been others. Thankfully, I’ve been blessed with honest kids who I believe avoided much of what their peers were exposed to, but I thoroughly understand that it happens. It shouldn’t.
One particularly egregious case of incidental porn exposure happened a few years ago when my daughter was curious about her own name. She Googled it. She found an image that actually looked a little like her, so she clicked on it. Immediately the page she visited was filled with disgusting acts that a child should not see at such a young age. Could it have been avoided? Sure. I should have, as a parent, been more thorough with my discussions with her regarding clicking on things online. I could have done like many who simply prevent their children from using the internet. These parents have to hope their children don’t interact with other children who do have access to the internet and willfully share their “interesting” finds with their friends.
There are filters that can be put in place on devices, and I highly recommend these. But such filters are not perfect and again they do not contend with the challenge of other children having easy access to adult websites and a willingness to share their findings. Of course, there’s a better, more conservative solution. It tramples on Libertarian absolutism in regards to government involvement and personal responsibility, but it passes the Needs-Means test.
What is the Needs-Means test, you may ask? It’s my simple smell test to determine if any proposed law (or in this case, the enforcement of preexisting laws) is worth pushing forward. In the vast majority of cases, legislation fails this test, even when proposed by Republicans. We have too many laws, too much bureaucracy, and too many restrictions to our freedoms as it is. To pass this test, a piece of legislation must demonstrate a true Need of the people affected. This means the desires, feelings, symbolism, and any other intangible results must be tossed. The second component is means, and this generally dissolves the hopes of most pieces of legislation from ever being acceptable unless they’re either not accruing more costs or actually cutting government spending. Why? Because we can’t pay for the spending DC is currently doing. We must not add a single penny to spending without the means being found to do so first. That means cuts, cuts, and more cuts.
Does the request made to AG Barr pass these tests? Let’s see.
Do we have the need?
I’m obviously in the camp who believes we need easy porn access to be limited dramatically. But it actually goes beyond just making it harder for kids to find it. As Matt Walsh noted at The Daily Wire, there are more victims suffering as a result of the prevalence of porn on the internet than just kids.
A Group Of Republicans Want The Government To Start Fighting Hardcore Pornography. They’re Right. Here’s Why.
The most common defense of porn is that it’s a matter involving consenting adults and has no effect on anyone else. If this were true, I’d probably agree that the government has no place in restricting it, even if it is morally objectionable. However, this is not only untrue — it is laughably untrue. First of all, the link between the sex trafficking industry and porn is well established. The porn viewer may assume that the figures on the screen are acting consensually, but the fact is that, at least some of the time, they are not. The viewer may also assume that the people involved are all adults (unless he’s intentionally accessing child porn, which is a billion dollar industry in its own right), but sometimes they are not. The viewer simply has no way of knowing whether he’s watching the rape of a trafficked woman, or the abuse of a minor, or a consensual act between sober and clear-minded adults. But he’s not too concerned, as long as he gets what he wants out of the deal.
This is reason enough for, at a minimum, much heavier regulation on internet porn. It’s true that sex trafficking and child porn are both illegal already, but legal porn provides a platform for both. It’s impossible to sufficiently fight trafficking and child porn without heavier regulations on the types of porn that allegedly involve neither. But even if this significant concern could be put to the side, the case for regulating or banning porn would remain. That’s because porn — even consensual, adult porn — harms children.
You might argue that this is something for parents, and not government, to handle. But this argument ignores the reality of the situation. Parents cannot possibly shield their children from a porn epidemic that is so ubiquitous and accessible. Even if they restrict all internet access in their own homes, and refuse to allow their children to have phones with internet access (a wise move, to be sure), all it requires is one friend whose parents have not taken that step. And every kid will have at least one friend like that — probably many more than just one. This is a problem that parents cannot handle on their own. That’s why the state may have a role.
People are hurt by porn. It’s not just those who view it, though Walsh noted studies that demonstrate the detrimental effect porn has on viewers. On top of that, there are women and men who “willingly” participate as a result of demand and access. It’s a business that is growing more perverse while simultaneously becoming easier to attain. People in desperate situations who otherwise would take a different route often find themselves caught up in the industry. That’s their choice, right? Not always. It’s often very difficult to tell the difference between a willing adult participant and someone who was coerced or outright forced to do it. It can also be difficult to distinguish whether someone is of legal age or not.
To be completely transparent, I believe porn itself should be against the law. Prostitution is against the law unless someone’s filming and distributing it. No, that’s not an argument for prostitution being made legal. It’s to tell us that we’ve taken an illegal act and legalized it as long as it can “benefit” others. There are few times when we shouldn’t listen to the market. This is one of them.
With that said, I also understand the hope of banning porn has less of a chance of being successful as prohibition was. Our society demands its vices. But that doesn’t mean we need to enable those vices to harm others, as easy-access porn clearly does.
Do we have the means?
Yes. As noted, the laws are already on the books. Enforcement wouldn’t be free, but it’s not like the wasteful war on drugs or the massive border crisis. We’re talking about a drop in the bucket by comparison that may not even need funds added to the Justice Department’s budget.
Getting ISPs involved can help dramatically. It’s unlike in the past when it was too demanding to force compliance, thus the removal of the pornography aspects of the Communication Decency Act 23 years ago. Two decades later, the burden on both government and tech companies to enforce the law has been dramatically reduced. Today, algorithms and filters can be easily implemented to allow for a default version of the internet that is kid-friendlier while also allowing access to the other 0.001% of the internet for verified adults.
As Terry Schilling noted last month, it really isn’t that hard at all anymore:
How to Regulate Pornography
There has been much talk about the implementation of an opt-in system in Great Britain. In an effort to protect children from online pornography, former Prime Minister David Cameron threatened that Parliament would regulate ISPs and force them to implement filters if they did not take action themselves. Soon, Great Britain’s four major ISPs self-regulated. One of the larger ISPs, Sky Broadband, has been the most aggressive in implementing an opt-in system, setting up a ratings system that provides differently filtered versions of the Internet with a default pornography-free setting of 13+. Sky also allows users the ability to customize their filters by blocking specific websites or adjusting the rating based on time of day. Parliament never passed a law requiring this type of action; mere talk among British politicians encouraged the ISPs to self-regulate.
What happened in the U.K. could serve as a political model for the U.S. Ideally, if regulation became a political issue, American ISPs would set up content filters themselves, preferring a free-market approach to dealing with government regulators. And if American ISPs chose not to self-regulate, implementing a regulation requiring ISPs to set up an opt-in system would comply with the Supreme Court’s guidance from Reno, as long as opting in to the unfiltered Internet were not deemed an undue burden.
Another option, likely to face greater legal skepticism, is to regulate pornography websites through domain “zoning.” O’Connor and Rehnquist suggested “‘gateway’ technology” that “requires Internet users to enter information about themselves—perhaps an adult identification number or a credit card number—before they can access certain areas of cyberspace, much like a bouncer checks a person’s driver’s license before admitting him to a nightclub.”
In order to accomplish a “zoning” solution, Congress could pass a law (or perhaps the Department of Commerce, in consultation with the DOJ and potentially the Federal Communications Commission, could enact a rule) migrating all pornography sites to, for example, the .xxx domain, and requiring users to enter an age verification. This solution should pass constitutional muster, provided the verification process did not constitute an undue burden. It would also be an easier way to handle unfiltered pornography, as all pornography and indecent material that showed up outside the zone (for example, on a website with a .com or .org domain) could be deemed illegal and referred to the DOJ for prosecution.
Unlike in 1997 when conservatives last fought online porn, we now have both the greater need and the easier means by which it can be tackled. This is long overdue. It’s time to take on the porn crisis once again.
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