How to Regulate Pornography

A thirteen-year-old with a smartphone in 2019 has greater access to porno­graphy than the most depraved deviant could have dreamed possible two decades ago. At the time of the landmark Reno v. ACLU decision to permit online pornography in 1997, the Internet was still in its infancy. In his majority opinion striking down anti-­pornography provisions in the Communications Decency Act, Justice John Paul ­Stevens explained that existing precedent allowing government to regulate the “broadcast medium” did not apply to the Internet because “the Internet is not as ‘invasive’ as radio and television.” This seems ­laughable today.

The online pornography industry exploded in the years following Reno. The lewd photos of the 1990s were replaced by salacious videos in the 2000s and on-demand livestreams in the 2010s. The ability to access pornography on bulky personal computers was supplemented first by laptops and then by smartphones. Not only has pornography become more accessible, it has become more diverse and perverse, as cultural vanguards and even mainstream institutions have promoted sexual fetishism as a new sort of societal norm, if not overtly, then with a wink and a nod. Online pornography has contributed to the abuse of women and to human trafficking. It has been declared a public health crisis by fifteen states. It has broken up marriages, destroyed families, and ravaged communities.

Pornography has been largely ignored in American politics. The Reno decision still informs the legal and political framework for the conservative movement’s approach to the pornography issue. The ­consensus today among both Republican and conservative establishment elites is that any effort to regulate the online porno­graphy industry would be declared ­unconstitutional and is ­therefore ­futile.

Yet at the federal level, there remain plenty of regulatory tools at our leaders’ disposal. Why are conservatives so gun-shy? Surely there is a political approach that makes sense.

The late 1980s saw a major political effort, led by an ideologically diverse coalition of Christian conservatives and liberal feminists, to take on the pornography industry. The movement passed legislation that cracked down on sex trafficking, criminalized digital transmission of child pornography, and required producers to engage in record-keeping and age verification for all participants in the production of pornographic material. President Ronald Reagan put “the purveyors of illegal obscenity and child ­pornography on notice: your industry’s days are numbered.”

In addition to signing anti-­pornography legislation, Reagan directed the Department of Justice to enforce existing obscenity statutes against wholesale and large retail distributors. The strategy was ­successful. According to the DOJ, by 1990, seven of these nationwide distributors had been forced “out of business” after settling with government prosecutors. Unfortunately, President Bill Clinton’s DOJ did not prioritize enforcement of these statutes.

Obscenity laws have existed in the United States for nearly its entire history (and still exist). The Supreme Court’s definition of obscenity rests on the three-pronged Miller test established in Miller v. California (1973). For material to be subject to state obscenity statutes, it must: (1) be found by the average person to appeal to the prurient interest; (2) depict or describe blatantly offensive sexual behavior; and (3) lack “serious literary, artistic, political, or scientific value.”

The courts have consistently affirmed that obscenity is not constitutionally protected speech and that the state may regulate obscene content. They have likewise affirmed the government’s interest in protecting children from exposure to speech that, without qualifying as obscene, may still be considered objectionable. These precedents informed Reagan’s legislative efforts, as well as his agency efforts to enforce existing obscenity laws. They also informed the successful effort by Congress to pass the Communications Decency Act (CDA), which Clinton signed into law as part of the Telecommunications Act in 1996.

The CDA was the first federal law to regulate online pornography. The law made it illegal for anyone to knowingly send children under the age of eighteen any sexual “comment, request, suggestion, proposal, image,” or other communication that depicted sexual activities. It also criminalized transmissions deemed “obscene or indecent” to children under eighteen.

The CDA was challenged before the Supreme Court in Reno v. ACLU, and its anti-pornography provisions were struck down. After this ruling, the conservative movement called it a day. But it is important to state the obvious: The Supreme Court did not strike down all obscenity laws in Reno v. ACLU, nor did it bar the federal government from regulating pornography on the Internet, nor did it overturn existing precedent recognizing the government’s interest in defending minors from both obscene and non-obscene “indecent” material. Instead, as Justice Stevens explained in his majority opinion, the problem with the CDA was the undue burden it placed on the constitutionally protected speech of adult consumers:

In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

In a concurring opinion, Justice Sandra Day O’Connor and Chief Justice William Rehnquist argued that the federal government had the authority to “zone” the Internet, just as a local community might prevent the construction of an adult movie ­theater or bookstore near an ­elementary school:

[We] view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound.

O’Connor and Rehnquist saw no problem with the “undeniable purpose of the CDA,” which was to restrict indecent material on the ­Internet to sectors inaccessible to children under eighteen. The problem with the CDA as written was that it placed an undue burden on the constitutionally protected ability of adults to access indecent material: “A ‘zoning’ law is valid only if adults are still able to obtain the regulated speech.” (Adult access to “obscene” material could still be restricted by means of obscenity laws as outlined under the Miller test.)

It’s not difficult to read the concurring opinion as a blueprint for regulating online pornography and protecting children from exposure to indecent material. Reno was a setback for the anti-pornography movement, but its proponents could easily have rewritten the CDA in a way that defended children while respecting the constitutionally protected speech of adults. Unfortunately, that never happened. In the twenty-two years since Reno, the Republican party has done nothing to fight the online pornography industry—this amounts to political malpractice. The conservative movement has largely capitulated on the issue as well.

There are at least three politically feasible legislative solutions to the pornography crisis that should pass constitutional muster under the guidelines established in Reno. The first solution is to regulate pornography at the Internet Service Provider level by passing a law or enacting a rule requiring ISPs to provide a default version of the Internet that is filtered of indecent content, while allowing adult users the ability to opt in to an unfiltered version of the Internet.

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.

The last solution is fairly aggressive and touches on a familiar issue. There has been much discussion among conservatives about rewriting Section 230 of the Communications Decency Act: the immunity carve-out for Big Tech companies that allows them to avoid civil liability for content posted by users on their platforms. This protection also applies to user-submitted pornography aggregation sites—imagine Instagram or YouTube, but for pornography—which make up the majority of free pornography sites on the Internet.

Congress could rewrite the CDA so as to strip Section 230 immunity from sites that publish obscene and indecent material, thus opening these sites to civil liability for the content posted on their platforms. This would present a problem for many of these sites, especially the aggregation sites, which often host pornography featuring individuals who did not consent to having their likeness distributed to the public. In the distribution of such content, people are sexually exploited by a billion-dollar industry while receiving no compensation for the physical, professional, and emotional damages caused to them. They deserve their day in court.

In our time, a new conservatism is being born—one less interested in managing our nation’s decline than in using political power to promote virtue, public morality, and the common good. J. D. Vance explained the shifting mentality on the right:

We are rightfully skeptical of government overreach, but I think we take that skepticism so far that we’re skeptical of even using political power when we have it for ends that we think are valuable. And I do think that we have to get over that, and we have to recognize that when people entrust us with political power to solve problems we should at least try to solve them.

Vance is right: Conservatives need to overcome their fear of governing the nation that elected them. The legal framework already exists within which we can tackle the online pornography crisis and defend the innocence of children. We must find the fortitude, finally, to do it.

Terry Schilling is the executive director at American Principles Project.