There is nothing new about the assault on sexual content. What is new is the rubric of public health concerns over sex trafficking and child safety to justify broad restrictions on sexual content, private censorship of sexual expression, and citing health and safety of sex workers to justify onerous restrictions on producers and performers.
That is how the Free Expression Network described a recent panel discussion it hosted, one titled “The Assault on Sexual Expression.” The panel was part of an October 17, 2016 program held in Washington, D.C. It was moderated by Ricci Levy (President of the Woodhull Freedom Foundation); the panelists were Larry Walters (partner, Walters Law Group), David Horowitz (Executive Director, Media Coalition), and Joan Bertin (Executive Director, National Coalition Against Censorship).
Item: Do you remember the group named Morality in the Media? In keeping with the times, in 2015 the group changed its name to the National Center on Sexual Exploitation. The group’s mission: “Confronting sexual exploitation.” Apparently, morality has taken a backseat to concerns such as:
- “Porn Harms” (see e.g. Gary Wilson, Your Brain on Porn: Internet Pornography and the Emerging Science of Addiction (Commonwealth Publishing, 2015))
- “Sex Trafficking,” and
- “Sexual Exploitation“
Consider also this item from the Republican Platform for 2016: “The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the lives of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography, which is closely linked to human trafficking.”
It all sounds so liberal, so modern, and so unobjectionable. Exit the old Anthony Comstock mindset, enter the new pro women, pro children, and pro health mindset. But just as the anti-pornography movement hoists its new flag, opposition to it is mounting in psychological and legal quarters.
War on porn over?
First, Mr. Walters with these exclusive statements to FAN: “For decades, the “War on Porn” was justified on the grounds that viewing explicit material is immoral, and masturbation is a sin. As time passed, and erotica became mainstreamed, these hackneyed claims wore thin. Now, all the top celebrities have a sex tape, the Adult Video News Awards are broadcast on Showtime, and porn sites get more visitors than Netflix, Amazon, and Twitter, combined. Moral acceptability of porn is rising, particularly among women who now make up 24% of the largest porn site users. The federal government has essentially given up on prosecuting obscenity prosecutions, with no new cases being filed since President Obama took office. In 2014, thinkprogress.com declared that the War on Porn was over, and the censors had lost.”
“The prior justifications for opposing sexually explicit media,” he added, “needed a 21st Century face lift if they were to survive. Thus was born the idea of porn as a ‘public health crisis.’ Health and fitness is all the rage, so the new battle cry had a nice ring to it. To give the campaign a boost, ‘experts’ began claiming that porn was also “addictive”, and generated harmful “erototoxins” that changed the chemical makeup of the brain. Naturally, Congress held hearings to explore this new flavor of porn panic.”
“One issue that unites virtually all lawmakers,” argues Mr. Walters, “is the fight against sex trafficking. In overwhelming majority votes, the House and Senate passed the controversial SAVE Act in 2015, imposing potential life imprisonment on anyone who advertises acts of sex trafficking. A bipartisan group of lawmakers has recently called upon the Justice Department to be more proactive in enforcing the law. Now sex trafficking is being used as another justification for the renewed War on Porn? A recent, comprehensive report funded by the DOJ concluded that pornography contributes to sex trafficking. The report, entitled; Identifying Effective Counter-Trafficking Programs and Practices in the U.S.: Legislative, Legal, and Public Opinion Strategies that Work, concludes that consumption of sexually explicit media ‘contributed to a more laisse-faire attitude toward [sex trafficking].'”
In sum, “labeling pornography as a public health crisis, addictive, and supportive of sex trafficking, fits the modern agenda. It’s a far cry from claiming that looking at nudie mags is immoral.”
Porn & anti-social behavior
Next, there is Dr. Marty Klein, author of a just-published book titled His Porn, Her Pain: Confronting America’s PornPanic with Honest Talk About Sex (Praeger, 2016). Here are a few items of interest from the book:
- “Does porn lead to anti-social outcomes? Since free, high-quality porn flooded America 16 years ago, the rates of sexual violence, child molestation, and divorce [in the United States] have declined.”
- “The overwhelming majority of Internet porn shows happy, smiling people enjoying playful, consensual sex. Critics who focus only on the violent depictions on the fringe — which most people don’t watch — aren’t talking about porn, they’re using porn to talk about other things.”
- “Women don’t have to compete with porn actresses any more than men have to compete with John Wayne, George Clooney, or Shia LaBeouf. Remember, men aren’t relating to the women in porn, they’re relating to the characters the actresses play.”
- “To say that porn demeans women is to deny the reality of some women’s passion, lust, and desire. It’s to say that women never enjoy what men enjoy. It’s to say that women don’t enjoy playing games with their sexuality, including power games. It’s to say that women shouldn’t be who they are or enjoy who they are, but that they can only enjoy ‘authentic’ sexuality within limited (and historically stereotypical) bounds. This is not feminism.”
> > > See also Jerry Barnett, Porn Panic!: Sex and Censorship in the UK (Zero Books, August 26, 2016)
→ Next, enter Larry Walters, the First Amendment lawyer.
→ See also Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, California Law Review (2016):
“We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. . . . An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment.”
* * * *
→ See also David Post, A setback for First Amendment protection for anonymous speech, The Volokh Conspiracy, Oct. 31, 2016 (“the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all “Internet identifiers” just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.)
* * * *
→ Related items:
- Congresswoman Speier, Fellow Members of Congress Take on Nonconsensual Pornography, AKA Revenge Porn, July 14, 2016 (endorsed, among others, by Dean Erwin Chemerinsky and Professor Mary Anne Franks)
- Matthew Hall & Jeff Hearn, Revenge Pornography: Gender, Sexuality and Motivations (Routledge, April 7, 2017)
Ruthann Robson: Supreme Court Grants Cert. in First Amendment Rights of Sex Offenders to Access Social Media Read More