A new Utah law, requiring all cellphones and tablets sold in the state to block pornography, points to how difficult this is — and to the limits of legislative solutions.
A newly signed Utah law, requiring all cellphones and tablets sold in the state to automatically block pornography, points to how difficult this is — and to the limits of legislative solutions.
T he Normans found Ireland much more difficult to conquer than England. By the time William the Conqueror landed on the southern coast of Sussex in 1066, England had been consolidated into a single kingdom by Alfred the Great and his successors. All the invaders had to do was defeat the king and his supporters in battle and the whole kingdom would take it as a sign that England had fallen to a new ruler.
Ireland was different. It was much less united and not at all centralized. There were many warring tribes on the island, all of whom proclaimed their own king to be the rightful “high king of Ireland.” Consequently, there was no single, central victory the Norman invaders could win — no Irish version of the Battle of Hastings — to signal to the rest of the native Irish that the game was up and that they should lay down their arms. The kings of each petty tribe had to be fought and defeated one by one until total military conquest was achieved.
So, what does any of this have to do with porn? Quite a bit, actually, because we can’t have a productive discussion about restricting access to pornography until we realize that the Internet is a lot more “Irish” than “English.” It’s probably the most decentralized invention ever conceived by the mind of man. The operations that your computer performs to access a website page like this one aren’t all facilitated and supervised by a single authority. They involve the weaving together of many different and independent strands of cyberspace, almost all of which are owned and operated by independent actors.
To put it plainly, there is no centralized point of power over the Internet the regulation of which would spell doom for online pornography. As much as many social conservatives would like to have one big legislative Battle of Hastings that would end Internet porn once and for all, material conditions have already foreclosed this possibility.
The legislation signed by Governor Spencer Cox of Utah on March 23, requiring all cellphones and tablets sold in the state to automatically block pornography, basically acknowledges as much. A rather strange provision in the law prevents the measure from going into effect until at least five other states have enacted similar restrictions. This is a concession to the fact that it would be impossible for a single state to enforce a law like this on its own. But even the idea that five states together could do something like this is, unfortunately, little more than wishful thinking.
As Tim Alberta noted a few years ago in Politico, the history of smut is, by and large, a story of technology outpacing censorship. The Comstock Act of 1873 banned the mailing of “obscene,” “lewd,” or “lascivious” materials in the United States, but the advent of halftone printing and moving pictures soon made the law unenforceable and redundant. Today, sweeping legislative packages with comparable aims are likely to meet a similar fate.
It’s currently possible, for instance, for a government to force Internet service providers to block access to pornography sites. But such a measure would already be little more than a placebo. Since the advent of easy-access VPNs and personalized home networks, it’s become easy to circumnavigate restrictions like this without much effort or specialized knowledge at all. To extend the metaphor introduced above, if the feudal lords of the Internet like Verizon and AT&T bend the knee to a centralized regulator, it would be quite easy for you to set up your own little fiefdom that runs according to its own rules.
Some porn restrictionists advocate an approach called “domain zoning,” which would force all pornography websites to use the domain name “.xxx” instead of “.com” or any other commonly used domain. Clamping down on porn would then simply be a matter of prohibiting access to websites ending in “.xxx.” This, too, however, is a more or less unenforceable measure. Website names are protean things that can be repeatedly changed and modified to elude regulators indefinitely. This is already what illegal movie-streaming sites habitually do.
Another proposal would involve reforming Section 230 of the federal Communications Decency Act in such a way as to expose publishers of obscenity to legal action. However, the regnant legal definition of obscenity in the United States, established in the 1973 Supreme Court case Miller v. California, is pitifully vague to the point of being practically useless in this respect. Even if President Trump had tried to follow up on his campaign promise to enforce federal obscenity laws against pornographers, the legal semantics established by Miller would have left him with few options.
The shortcomings of cumbersome bureaucratic plans for regulating pornography should not, however, cause social conservatives and anti-porn feminists to throw their hands up and resign themselves to a libertine cultural landscape. Technological innovation and market forces can be used to check the spread of pornography in much the same way they’ve been used to proliferate it. But for a rearguard action against pornography to be successful, it will have to begin at the grassroots level rather than be handed down from on high by legislators.
We already have examples of how this might work. The team behind Pi-hole, for example, has built a piece of open-source software that allows users to block their devices from accessing certain domain names by preventing those domain names from resolving to a useable IP address. At the moment, Pi-hole is used for things like blocking ads on websites, but the technology could easily be applied to pornography. It’s not hard to imagine a tech start-up that would market itself as an open-source anti-porn collective. Such an organization would keep an eye on the ever-growing list of porn sites and constantly update its program to block their IP addresses. Subscribers or “members” of the collective could have the program running on their home devices and organize themselves into physical and virtual neighborhoods and communities wherein each household was a member of the same collective. Devices operating on the 4G or 5G services of Internet companies would obviously be bound only by the policies of the service provider, but those companies tend to have robust parental controls for these services anyway.
Social conservatives who favor a legislative response to the proliferation of pornography will probably have little patience with this approach. But it is the only viable one in the long term. The only way to comprehensively ban pornography would be to have a complete and total government takeover of the Internet, as has been accomplished by the Chinese Communist Party. This would be somewhat analogous to the Norman strategy of total conquest in Ireland. It would also, for all practical purposes, mark the end of freedom and privacy in the United States of America. Few, one would hope, would regard this as a worthy price to pay for the extirpation of Internet pornography.
The bottom line is that popular products will always be available in any kind of open, democratic society, and pornography is hugely popular. That doesn’t mean, however, that there is no escape from it. If Americans who view porn as a serious civilizational menace want to band together into physical and online communities and cast it out of their own social ecosystem using the power of the market and of technological innovation, there is little preventing them from doing so. The same can be said for almost any kind of community. If all of the Catholic integralists in America, for instance, or all the socialists, really wanted to band together in some corner of the country and live voluntarily as they would have others live by compulsion, no one would make a great deal of effort to stop them. The reason that such eccentric little enclaves hardly ever materialize in the United States is that most people, if they’re being honest with themselves, simply lack the motivation to organize them. Most people are content enough with the way things are to excuse themselves from making any onerous change to their own living arrangements.
However, if there are Americans who view the war on porn as one that must be fought, and fought collectively, voluntary association is not only the best method for doing so but the method most in keeping with the American character. In Democracy in America, Alexis de Tocqueville formulated a theory of concentric interests to account for what he observed in American communities. He noticed that Americans defined the public interest in a way that rippled out from the individual to encompass the broader interests of the family, then the neighborhood, then the broader community, and so on. As Larry Siedentop writes, “Such a theory of concentric interests remedied a radical weakness of the individualist, proto-liberal model of society which had emerged in seventeenth-century Europe,” whether “Benthamite utilitarianism, [which] saw the public interest as simply an aggregation of individual interests,” or Rousseauism, which “postulated an objective public interest knowable apart from the de facto preferences of individuals.” The public interest, as Tocqueville saw it defined in America, was not just the aggregate interest of individuals, nor was it simply the interest of the state: It was the interest of all those intermediate groups that fanned out from the individual to create civil society.
It’s possible, then, to conceive of the public interest as something that can be served by discrete and distinct groups formed by way of voluntary association to meet a pressing need. Not everything that’s in the interest of the people needs to manifest itself in legislation, nor is the recognition of this fact akin to celebrating and promoting every sordid secretion of a rotten industry. This is simply how Americans have preferred to get things done over the centuries. We are all free to take up their mantle if we so choose.