Principles and Pornography

People on the right agree kids shouldn’t have access to online adult material online. But is there a way to do that consistent with conservative principles?

exploitation of women and children via sex trafficking.

Sixteen states have rightly declared ubiquitous online pornography to be a public health crisis. Yet some, including professed conservatives, say no government remedy is possible.

Some object that lawmakers can’t do anything, since pornography falls under the protections of the First Amendment. Where they get this idea is difficult to say. It’s not originalism—obscenity laws are as old as the country. It’s not even current Supreme Court precedent. Case after case, including the famous Miller v. California, have affirmed that “obscene material is not protected by the First Amendment.”

But, the porn proponents protest, what about Reno v. ACLU? That case struck down the anti-pornography provisions of the Communications Decency Act. Decided in 1997, one of its key arguments was that “the Internet is not as ‘invasive’ as radio and television.” Today, that notion is laughable.

But even in Reno, the Court in a concurring opinion outlined a constitutional path forward: “zoning” the internet to protect children. This might work by “requir[ing] Internet users to enter information about themselves—perhaps an adult identification number or a credit card number—before they can access certain areas of cyberspace.”

The porn industry knows it is providing sexually explicit content to children, but has done next

“Supporting mandatory age Verification for porn Sites is a political no-brainer.”

to nothing to stop it. The top porn website conglomerate Mindgeek refuses to implement even the barest age verification system for users. And sites that host user-uploaded porn not only do not verify the age of their viewers, they don’t verify the age of uploaders.

We don’t tolerate this kind of behavior among cigarette distributors, alcohol distributors or gambling sites. Why do we simply avert our eyes when it comes to porn?

Current law prohibits the knowing distribution of obscene content to children. This statute could (and ought to) be applied to porn sites. But it isn’t enough. So let’s make the law clear: Online pornography distributors ought to implement age verification to prevent children from accessing their material, or otherwise be held liable in court.

The obvious solution is to make Section 230 immunity—which shields porn sites and other internet companies from civil liability for the content posted on their platforms— conditional on implementing age verification. A recent poll commissioned by my organization, the American Principles Project, shows such a policy is popular with Americans. Across 7,000 voters in 10 states, 82 percent said they support requiring online porn distributors verify the age of their users. This includes overwhelming majorities across every economic, ethnic, political and ideological subgroup we polled.

Supporting mandatory age verification for porn sites is a political no-brainer. All that’s needed now is a leader with the courage to take it up.

Some conservatives are Still hellbent on banning online porn.

Matt Walsh, a Daily Wire columnist and a culture warrior if there ever were one, wants the state to “have a role” in regulating adult content. Sohrab Ahmari, op-ed editor of the New York Post, insists that adult content “isn’t free speech—on the web or anywhere.” Newsweek’s own opinion editor, Josh Hammer, has lamented at First Things that “today’s self-proclaimed liberty-minded ‘conservative’ vanguard defends licentiousness by invoking the mantle of freedom.”

And Terry Schilling, executive director of American Principles Project, has spent a good portion of his career discussing his concerns about adult entertainment and, more specifically, access to it.

I am a constitutional conservative. I am a Christian. I am an occasional columnist at The Federalist, whose pieces have been edited and/or rejected for being too conservative. I am also a multi-time, award-winning, Hall of Fame adult entertainer. I am an advocate for adult entertainment. But I actually have more in common with people like Matt Walsh and Terry Schilling than I have differences with them.

While I acknowledge Terry’s research and his perspective, in truth his work is an assault on the Bill of Rights. It flies in the face of freedom. Those are not positions constitutional conservatives should take. We should always seek to err on the side of liberty.

Terry and others cite the massive growth in, and consumption of, online adult content as a negative. I see it as a positive. I see it as

capitalism—the free market working perfectly. It is a legal product experiencing a growth trend wherein both consumer and producer benefit; isn’t that what liberty is?

Moreover, if we are going to be intellectually honest, there must be agreement on this fact: There is as much research that shows adult entertainment has neutral, or even positive, effects as there is research that shows it has negative effects.

Here are but a few examples that show neutral to positive effects:

→ Archives of Sexual Behavior (2008): Self-perceived effects of pornography consumption

→ International Journal of Law & Psychiatry (2009): pornography, public acceptance & Sex related crime: a review

→ European Journal of Developmental Psychology (2014): online pornography use in adolescence: age and gender differences

→ The Journal of Sex Research (2016): adolescents and pornography: a review of 20 years of research

In most instances, those who seek to link pornography to countless ills are ideologically motivated. The aggregate scientific research simply doesn’t support their conclusions.

Like it or not, adult entertainment is a settled issue. As I wrote in The Federalist, the Supreme Court has been clear. You are thankfully not going to be able to outright abolish adult entertainment.

Much if not all of the indignation surrounding adult entertainment stems from the issue of access. On this, Terry and I agree. We just have to work out our differences over how to solve the issue.

The problem, in my opinion, stems from a three-headed monster:

1. The Digital Millennium Copyright

Act (DMCA)

2. Websites that allow user-uploaded content

3. A lack of laws written to actually address the issues

Under the current rules and in compliance with the law (DMCA), platforms from Pornhub to Twitter, Reddit, and so forth either directly or indirectly profit from pirated content uploaded by anonymous users.

Meanwhile, these sites do nothing to prevent underage kids from accessing adult content. Why would they? They aren’t required to do so. As a result, any 11-year-old with a smartphone can view hardcore material.

How is this possible? Unfortunately, up to this point, the federal government has largely avoided taking on this issue while, at the same time, providing these same sites with immunity from civil liability via a statute known as Section 230.

One solution, which Terry and the American Principles Project advocate, would be to amend Section 230 by making the immunity from civil liability merely conditional. Adult tube sites would lose their protections if they fail to prevent kids from uploading or accessing illicit material—giving victims and parents the right to sue.

I am not in favor of that solution for three reasons. First, when you come at an industry or person and say, “my solution to the problem we agree on is opening you up

“THERE IS AS MUCH RESEARCH THAT SHOWS adult entertainment HAS neutral, or even Positive, effects as there is research that SHOWS it HAS negative effects.”

to never-ending lawsuits,” the conversation is over. That is not how you win over friends and influence people. Second, I hear conservatives argue rightly, and continually, that we need equal application of the law. This would single out adult tube sites and apply a law unequally. Third, it doesn’t actually solve the issue: It’s a penalty, but not a solution. Worse, it’s shortsighted and ignores the certain, future advances in technology.

Instead, I support the implementation of a “Digital ID” system. Digital ID is basically an online version of what all adults have in their wallet. Its purpose would be to verify an individual’s identity online for any platform that allows user-uploaded content of any type. It would also be required by any platform or website that offers products or services that are age-restricted, such as online gambling, alcohol sales, the sale of nicotine and tobacco products and the consumption of adult entertainment.

Digital ID would also be helpful in addressing other problems online, such as cyber-bullying and doxxing, which are fueled by complete anonymity. Want to fix our polarized atmosphere? Make hateful trolls identify themselves and act like human beings.

As big-tent conservatives—and believe me, there are plenty of people in my world who support President Donald Trump!—we should be able to come together and make internet policy better for everyone. We’ll never agree on banning porn—that’s ridiculous. But if we can work out our differences, it’s time we move forward and get something done.