National Review: The Case for Wielding Obscenity Laws Against Online Pornography
Originally published at National Review
By Zachary Evans
In the midst of a debate among conservatives about whether, and to what extent, the government should curtail online pornography, Professor Robert P. George of Princeton [in January 2020] urged the Justice Department and U.S. Attorney General William Barr to enforce existing obscenity laws as a means of combating access to porn.
In the letter, George accuses the DOJ of abdicating its responsibility to prosecute obscenity in online content and asks that the attorney general clarify the department’s position on whether pornography is obscene and as such subject to regulation.
The desire for the Justice Department to deepen its involvement in prosecuting breaches of obscenity law has existed for some time. In 2017, Patrick Trueman, the head of the National Center on Sexual Exploitation and a former chief U.S. prosecutor for the Child Exploitation and Obscenity Section at the Justice Department, wrote that “we are in the midst of a public health crisis caused by pornography, a crisis that could have been prevented by the enforcement of obscenity laws.” In December 2019, four House Republicans urged Barr to begin prosecuting obscenity cases, after Obama AG Eric Holder had disbanded the Obscenity Prosecution Task Force at the Justice Department.
The Supreme Court has ruled on several cases involving violations of obscenity law, most crucially Miller v. California, which established the “Miller test” for judges and jurors to determine if material can be classified as obscene. In the intervening years, advocates of a more lenient anti-pornography regime have criticized the ruling for its vagueness and for standards that they argue have proven too difficult to implement.
In a separate criticism of the push to prosecute online porn through obscenity laws, Katherine Mangu-Ward, chief editor ofReason magazine, told Vox that such a move would be antithetical to the conservative movement. “What you’re seeing now is this rise of a much more authoritarian and state-oriented variant of conservatism and it just says, ‘You know what? Actually, never mind. Let’s take away the bad choices. Let’s make some bad choices illegal,’” Mangu-Ward said. “This has long been a characteristic of the American left.”
Nevertheless, conservatives including Sohrab Ahmari, opinion editor of the New York Post, and Matt Walsh of the Daily Wirehave advocated for increased legal action against online porn. Following the publication of his letter to Barr, I spoke with George to elucidate some of the issues at hand, and to see how, and for what reasons, he believes obscenity laws should be enforced in the Internet age. The following transcript has been slightly condensed and edited for clarity.