This compromise between liberty and the common good is the right way to protect children from obscenity.
For several years, conservatives have debated whether legislative policy should be structured for the common good or for the defense of liberty. One of those debates has been the subject of pornography, which the recent controversy over pornographic film actress Brandi Love’s appearance at a Turning Point USA conference reminded us of. The debate turns on the questions of whether pornography should be completely banned, or whether we should allow the industry to behave as it pleases. But there is a middle ground, one that gives parents greater control over how they choose to raise their children and protects the mental and psychological health of those children: banning free online porn.
Our culture is awash in pornography. When outraged parents complained about the recent introduction of “pornography literacy classes” to their students in the Manhattan Dalton School, in which six-year-olds learned about masturbation and consent, while juniors and seniors were exposed to various categories of pornography, the purported justification was realism: Children will inevitably be exposed to it.
Unfortunately, that’s true (though deliberately exposing students to it in a school setting is another matter). The New York Times notes that the first time boys are exposed to porn is just under the age of 14, while girls are exposed on average before they turn 18. This should not be written off as some lewd but mostly harmless coming-of-age ritual. A 2019 study published in the Journal of Pediatric Healthcare found that viewing pornography under the age of 12 is linked to “problem sexualized behaviors,” which is defined as “sexual knowledge beyond what would be expected for the child’s age and developmental levels, such as children engaging in sophisticated sexual acts such as intercourse or oral sex.” The study also finds porn actively promotes behavior such as “sexual aggression, risky sexual practices, objectification of women, and hyper-gendered male and female stereotypes” in children, aside from noting its addictive qualities.
In the case of Dalton School, which is private, it is not a simple issue of defunding a public institution. The root cause of the problem — namely, the overexposure to pornography — would be addressed by banning free online porn.
To understand how this might be done, and why it should be, it is necessary to understand how the porn industry in the U.S. has changed dramatically over the past several decades. In the 1980s, young men often bought tickets to watch a pornographic film or, alternatively, an issue or a subscription to Playboy or Penthouse magazines. According to the New York Times, each of those brands at that time sold 5 million or more copies each month. They were the primary means of accessing pornography. But if parents found said magazines under the beds of their young boys, they could easily seize the explicit reading material and admonish the child. Meanwhile, adults could continue purchasing the magazines if they so pleased.
But as the Internet grew in the 1990s and beyond, those seeking pornography increasingly looked elsewhere. By 2015, Playboy sold only about 1 million copies of its magazine per month; Penthouse sales plummeted to 100,000 copies. In 2020, Playboy shut down its print magazine. The coronavirus pandemic may have accelerated its demise, but porn-industry trends suggest it was likely going to happen regardless.
Pornhub and other sites like it are now overwhelmingly the source of pornography for young men and women. They’re some of the most-trafficked websites. According to the Visual Capitalist, two of the top ten most-trafficked websites are MindGeek-owned XVideos and Pornhub, which together bring in about 6.7 billion monthly visits. But a significant proportion of their content is free.
In 2010, researchers from the Technical University of Vienna, Eurecom, and UC Santa Barbara concluded that the sites make their billions by “directing traffic to pay sites or even to one another” and that traffic is “monetized through traffic brokers — the majority of which do not even visit the sites in their affiliate networks.” Sites such as Pornhub may have a so-called premium service, but they mostly generate revenue from advertisements and from connecting users to other parties to purchase products.
On a foundational level, our country enacts laws that protect the least of us, particularly children, from becoming victims. Neither federal law nor the Constitution permits obscenity or child pornography. But a proactive, commonsense porn law, like banning free online porn, can and should be enacted to protect them.
The first significant First Amendment porn precedent, which protected the porn industry, was established nearly a quarter of a century ago. In 1997, the Supreme Court eliminated portions of the Communications Decency Act intended to protect minors, in a case known as Reno v. ACLU, specifically banning the transmission of “obscene or indecent” communications over the Internet to minors. Justice John Paul Stevens wrote in the majority opinion that the “Internet is not as ‘invasive’ as radio or television,” and thus could not be regulated like other broadcast mediums. The court’s precedent established in Reno was upheld in a 2004 case called Ashcroft v. UCLA, after Congress passed the Child Online Protection Act. At the time, the Court was, in part, unconvinced that requiring age certification was the least-restrictive way to prevent children from accessing online porn.
Those precedents may have accurately assessed contemporary conditions. But they unquestionably no longer do, particularly after the coronavirus forced nearly all American children to learn online and to attend class through the Internet. Under laws like the Children’s Internet Protection Act, which is deemed constitutional by the Supreme Court, schools that receive public funding are required to install software in public-library computers that blocks children from accessing porn and other obscene material. Yet this law doesn’t protect children when they are forced into cyberspace at home by schools and other entities.
This is a mistake. As early as 2005, the U.S. National Institute of Health found that up to 90 percent or more of young Americans between the ages of 12 and 18 use the Internet. That figure preceded the ubiquity of smartphones, as well as the coronavirus pandemic’s Internet ubiquity. Even so, the study still found that children who consumed free, online pornography during formative years “report clinical features associated with depression and lower levels of emotional bonding with their caregiver.” Studies since then have only affirmed its effects on children.
As times have changed, so have the conditions that previous laws and cases assumed. But the government’s compelling interest to protect children has not changed. It is possible to balance this compelling interest with existing law and liberty concerns. Legislation drafted to specifically ban free online porn wouldn’t mean targeting advertisers that place ads on those sites. It wouldn’t limit any official studio from producing content as permitted by current law. It would instead mandate that porn sites require visitors to sign up for an account and pay to view pornography. Payment options could range from a set price per video to a monthly or yearly subscription comparable to that of a streaming service such as Netflix. This is quite literally how all other major movie media companies make money. For example, companies such as Amazon, which allows Prime users to stream some free video content, require customers to pay the fee for a Prime account to watch the exclusives. Porn sites do no such thing; our children are worse off for it.
Unlike banning porn wholesale, which would mean the collapse of the porn industry, banning free online porn wouldn’t deprive the porn industry of its ability to contract with others or to post pornography online. Companies that own porn sites which mostly provide free content may still use advertising models to generate revenue, so it wouldn’t infringe on their deals with third parties. It would instead be drafted to address an online porn-induced public-health epidemic.
And it’s not merely obscenity that such a law would protect children from. In 2020, Pornhub was forced to purge over 10 million videos from its massive, online, and free library after the New York Times published an op-ed that alleged the site monetized videos that depicted rape and sexual assault. This is undoubtedly a positive development, as now at least children won’t be exposed to outright sexual violence. But the financial model of porn sites still allows them to keep the rest of their content, however dubious, free and easily viewable to the eyes of American children. We can do better.
Indeed, some state lawmakers are already trying. For example, Utah passed a law earlier this year that requires smartphones and tablets to block porn sites, but parents can disable this feature for their children if they choose. However, it only goes into effect if five other states pass a comparable law. They should. But more can be done.
The common good demands that we act in the interest and well-being of our children. Liberty demands that we be mindful not to give the government unnecessary power. A solution like banning free online porn protects what both liberty-minded and common-good-minded conservatives value. Meanwhile, we protect our children from potential irreparable mental and psychological harm and address our pornography crisis at its roots. Unlike the debate of whether or not porn stars should be allowed to attend and mingle with students at a youth conservative conference, this is something all conservatives should support.