Importance of Law in Combating Pornography, by Robert Peters
This article was based on a presentation that MIM President Robert Peters made at the Protecting Children and Families Conference in Salt Lake City on 8/18/01. Mr. Peters revised the article in January 2011.
I began my employment at MIM as a staff attorney in May 1985, and one of my responsibilities early on was to provide at workshops an overview of laws that apply to pornography and “adult businesses.” I soon discovered that even among those who are concerned about pornography, not everyone has a deep interest in laws, especially when the subject moves beyond generalities into the specifics.
This article is not about specifics but about the need or justification for laws to combat pornography. I might add that the broader debate about the role of law in a free society is one of the most hotly debated and important issues of our time. How we resolve this debate will determine in significant measure how we will live.
The purpose of law
What then is the purpose of law? This question cannot be fully answered in an article of this length or by this author; but clearly, one purpose of law is to protect the community and individuals by prohibiting or regulating what can harm them. Law is also a teacher, and enforcement of obscenity laws will reinforce the message that pornography is a moral and social evil.
What are the sources of law?
In my view, the first source of law is God Himself. I think most adult Americans would agree with that statement. I also think most of our nation’s founding fathers would have agreed, and throughout most of our nation’s history the Constitution was properly interpreted in light of a higher law.
A second source of law is the American people acting through their elected representatives in Congress and in state and local legislative bodies. This is one answer to the cry of pornography’s defenders, “Stop imposing your morality on me!” It’s not my morality. Laws against pornography are a reflection of community morality.
A third source of law is Federal and State judges; and as I see it, the main reason we have so much pornography in our nation today is the Supreme Court – which has often ignored the history of the First Amendment, its own prior decisions, the will of the American people, and common sense.
Why is law necessary?
Law is necessary is because there are bad people in the world. Efforts at spiritual conversion, moral persuasion, public education, and economic pressure are all very much needed; but some individuals will refrain from wrong-doing only when faced with a threat of law enforcement or actual enforcement. I would add that sexual addiction does not easily yield to moral persuasion or to spiritual conversion; and boycotts won’t work against “adult businesses” online or elsewhere because their customers won’t participate!
What happens when good laws aren’t enforced?
To answer this question, we need only look at what happens when federal and state obscenity laws aren’t enforced.
First, as more males become addicted to hardcore adult pornography, more is produced creating a demand for mostly young women to “perform” in the production of this degrading, violent, and perverse sexual material.
Second, as more males become addicted to hardcore adult pornography, the pool of men both willing and able to make a marriage work grows smaller, contributing to the breakdown of family life, morality and the social order.
Third, as more males become addicted to hardcore adult pornography, more males seek sexual satisfaction outside of marriage which contributes to the spread of sexually transmitted diseases, to abortions and children born out of wedlock, and to the demand for prostituted women and children.
Fourth, as more males become addicted to hardcore adult pornography, more time at work is spent viewing this material, leading to reduced worker productivity and to sexual harassment lawsuits.
Fifth, as more males become addicted to hardcore adult pornography, more males progress from viewing “adult” pornography to viewing child pornography which contributes to the demand for child pornography.
Sixth, while most men who became addicted to hardcore adult pornography do not engage in criminal sexual behavior, many do. Those behaviors include sexual abuse of children and sexual assaults against women.
Seventh, as more and more hardcore adult pornography is distributed online and elsewhere, more children are exposed to it, leading to children acting out what they view in pornography with other children and to sexual addiction.
Eighth, as more and more hardcore adult pornography pours into our nation’s communities and homes through the Internet, “mainstream” cable/satellite TV systems, “mainstream” video stores and hotels, and other sources, the “mainstream” entertainment media become more and more enamored with pornography, with the following results, among others:
*Pornography is a common theme in TV sitcoms and dramas
*Pornography “stars” appear in TV programs
*Films/documentaries sympathetic to pornographers air on TV
*CEOs of pornography businesses have their own TV reality programs
*Pornography is a common theme in Hollywood films
*Pornography “stars” appear in Hollywood films
*Films/documentaries sympathetic to pornographers show in minstream theaters
*Mainstream films include scenes of actual hardcore sex
*Rappers perform in and produce hardcore pornographic videos
*Pornography “stars” appear in “music videos”
*Pornography “stars” appear in product advertisements
*Pornography “stars” appear in “works of art”
*Mainstream publishers pay pornography “stars” to write books
*Pornography “stars” are invited to speak on college campuses
*Mainstream news media outlets defend and even promote pornography
Well, some might say, so what? My short answer to that question is that popular culture both reflects and shapes a society. Ideally, popular culture would accent what is positive in society and expose what is wrong; and under the Hays Code, that is what films did during Hollywood’s Golden Age. But more and more, our nation’s popular culture ignores or condemns what is good and wallows in, celebrates and even promotes what is wrong. Despite what some say, that is hurting our nation.
What are the limits of law?
The first limit is that there is both a supply and demand side to the hardcore adult pornography problem; and obscenity laws are aimed primarily at the supply side. Religious teaching and exhortation, public education, and professional counseling are all very much needed to help reduce the demand, but are in very short supply at present. I hasten to add that to acknowledge that there are limits to what law can accomplish is is not the same thing as saying that there is no role for law whatsoever!
A second limit of law in our own society is U.S. Supreme Court decisions interpreting the First Amendment. Thankfully, the Supreme Court has not accepted the lie that all “adult pornography” is protected by the First Amendment. But through a series of Court decisions going back to the 1957 Roth v. United States case, the Supreme Court both narrowed the scope of obscenity laws and made them more difficult to enforce.
A third (and, at present, the greatest) limit of law is the failure and refusal of federal and state prosecutors and law enforcement agents to enforce existing obscenity laws. There are a number of possible explanations for this dereliction of duty.
First, some prosecutors and law enforcement agents may not be fully cognizant of the grievous harm that hardcore adult pornography is causing not only to children but also to family life, to women, to the economy and to the nation. For these individuals, enforcement of obscenity laws is a not a priority.
Second, some prosecutors and law enforcement agents may be in agreement with the ACLU’s radical interpretation of the First Amendment. Instead of enforcing the laws, these individuals have set themselves up as judges of the laws. It should be remembered that the Supreme Court has never adopted the ACLU’s radical interpretation and that the ACLU defends distribution not only of adult pornography but also of child pornography.
Third, most prosecutors have never enforced obscenity laws and may be reluctant to do so for fear of losing a case. Up to a point I am sympathetic with these prosecutors, but by refusing to enforce obscenity laws, they surrender ou communities and nation to the pornographers. I would add that there are resources to assist prosecutors willing to prosecute obscenity crimes.
Fourth, the FBI refuses to investigate obscenity cases unless the material depicts “extreme” hardcore sexual content (e.g., rape, torture, sex with children, animals, or excrement). The FBI is apparently unconcerned about hardcore adult pornography that depicts, among other things, barely legal teens, teens for cash, incest, and “run of the mill” abuse and degradation of women. It is apparently also unconcerned that children can access this material free of charge and without proof of age.
Congress also shares part of the responsibility. When it comes to updating and strengthening federal obscenity laws, Congress has been great. But when it comes to holding the U.S. Justice Department and FBI accountable for their failure to enforce these laws, Congress has been asleep at the switch.
Yet another limit on law in our society is the American people themselves. While opinion polls indicate that most adult Americans still understand that pornography is a moral and social evil and would support efforts to suppress it, few take the time to let public officials know they want something done about it. Unfortunately, when it comes to hardcore adult pornography, community silence is usually treated by public officials as community acceptance.
Protecting copyrighted entertainment, but not children, on the Internet
For years now, mainstream entertainment companies have been waging an all-out war to protect copyrighted songs, films and games from unauthorized copying on the Internet. Why? Because it’s cutting into profits, big time!
These companies have spent large sums of money to develop technology to prevent copying and to educate the public about copyright laws and the severe penalties for violating those laws. Even schools now teach students that unauthorized copying is a form of theft.
These companies have also made vigorous use of existing laws to protect their products, suing not only online companies that permit unauthorized copying but also youth who violate copyright laws and their parents. They have also lobbied Congress for stronger laws, and they have lobbied the U.S. government to put pressure on countries that ignore copyright violations.
When it comes to their own pocketbook, the entertainment media and understand both the limits of law enforcement and thenecessity of law enforcement.
But when it comes to protecting children from exposure to online pornography, the entertainment media have by and large opposed any laws to protect children. Parents, they say, are not only the first line of defense when it comes to protecting children, they are the only defense. And tragically, our nation’s federal courts have gone along with this nonsense.
Parental use of filtering and monitoring technology on computers under their control should, of course, be the “first line of defense” when it comes to protecting children from exposure to online pornography. But for a variety of reasons many parents will not use available technology at all or will not use it properly.
Furthermore, even if many more parents could be motivated to use technology on computers under their control, children today increasingly have access to the Internet from devices that are not under parental control. And no technology is perfect.
I’m not a friend of those who think that all entertainment on the Internet should be free. Theft is wrong, regardless of circumstances, but I do recognize hypocrites of the first order when I see them.
Some years ago I recall seeing articles about shoplifting and employee theft. The articles indicated that the problems were pandemic and that the costs associated with prevention and with loss of property were tremendous.
No one suggested, however, that government should stop enforcing or repeal laws against shoplifting and employee theft and rely exclusively on better parenting, public education, and anti-theft technology!
But when it comes to the proliferation of hardcore adult pornography online and elsewhere, the American people are being told that there is no longer a role for law in protecting children from this injurious material.
As a “common sense conservative,” I too have concerns about Big Government, but laws protecting public morality, public safety, family life and children are not an expansion of government. They are an historic application of the police power.
Our society was founded on the concept of “ordered liberty.” No society will long prosper (let alone survive) with a government no longer able or willing to curb moral evil. Moral anarchy is an enemy, not a friend, of true liberty.
Author: Robert Peters 01/12/2011