State Legislatures, Flawed Bills and the “War on Porn”

Long before anyone coined the term “War on Porn,” the eventual battle lines were drawn in the conflict. Back in 1929, D.H. Lawrence’s novel Lady Chatterly’s Lover was banned in the United States. The ban was not overturned (with respect to the uncensored version) until 30 years later, when the court held in Grove Press v. Christenberry that the book could was not obscene under the standard established in Roth v. United States two years earlier.

By the modern standards we apply to sexually explicit expression, Lady Chatterly’s Lover would scarcely raise an eyebrow – unless, perhaps, those eyebrows belonged to a state legislator.

In looking over bills like Utah’s H.B. 243 and Mississippi’s H.B. 1116 and H.B. 1120, you get the sense that some legislators in both states (and one legislator in Mississippi, in particular) would like nothing more than to turn back the clock on American obscenity law, or shove the genie of modern communications technology back in the bottle — or perhaps fire a volley in a the War on Porn.

Mississippi’s H.B. 1116 calls for the creation of a “compact of the southern states for the purpose of constituting an area of moral decency, by banning Internet and web-based pornographic content in the southern states.”

The bill echoes claims made in various resolutions passed by state legislatures around the country declaring pornography to be a public health “hazard” or “crisis,” including the claims that porn “perpetuates a sexually toxic environment” and leads to a “broad spectrum of individual, public and societal harms.”

Curiously, while the bill states a goal of establishing a “ban” on internet porn, in the section detailing a requirement for “retailers of Internet enabled devices” to equip such products with “an active filter prior to sale that blocks by default websites that are known to facilitate the display of child pornography, revenge pornography, obscene material harmful to minors or any other sexually explicit material regulated under the Federal Law on Obscenity,” it also includes a provision that such blocking capability “may be disabled.”

For me, this stipulation invites an interesting question: If a filter can be created that is capable of selectively and effectively blocking the display of child pornography, material which is patently illegal to create, possess or distribute, why on earth would the state allow such a filter to be turned off upon the payment of a small fee by the user of the device? (Also, as potential weapons in a War on Porn go, an easily disabled filter seems like something of a dud.)

Throughout, the bill makes confusing and seemingly interchangeable use of terms like “online pornography,” “obscene material,” and “other sexually explicit material” – terms which all have very different meanings under the law and wide ranging levels of protection available to them under the First Amendment. And while I’m not qualified to offer a legal or constitutional analysis of these bills, it’s safe to say that legislation which implicates such a broad range of expression is going to face an uphill battle, once subjected to court scrutiny.

On its face, Utah’s H.B. 243 seems a bit less ambitious than Mississippi’s call to “ban” online porn – but that doesn’t mean the bill is any less of a mess, or any more useful as part of a state’s arsenal in a War on Porn.

As Utah State Rep. Brady Brammer noted in recent comments to a Salt Lake City Fox News affiliate, H.B 243 has been amended to clarify that the required labeling would apply only to “obscene” materials, rather than material deemed “harmful to minors.”

While Brammer said he believes this makes the bill less vulnerable to legal challenge, obscenity is a question decided on a case by case basis – so how could producers or distributors of pornography know in advance whether the material they’re creating and distributing is obscene? Do supporters of the bill even see the problem here? Or is there something less than meets the eye going on?

“This statute involves a shell game which makes it appear that the legislature is requiring the labeling of all ‘pornography,’” observed First Amendment attorney Larry Walters about H.B. 243. “However, the definition of pornography in Utah tracks the definition of obscenity. So only distributors of obscene material are affected by the statute’s labeling obligations. This leaves the public impression that lawmakers are requiring widespread labeling of porn, while in reality the law would only impact a very small subset of adult media that can be deemed legally obscene, under the Miller Test.”

So, does the change to specifying the labels would apply only to obscene materials have the effect Brammer desires, in terms of avoiding legal challenges?

“While relying on obscenity to define ‘pornography’ may save the statute from some legal challenges, it also means the bill would have little real-world impact,” Walters said. “Few mainstream adult content distributors would voluntarily label their content as effectively obscene. And only those distributors who provide obscene material would be affected by the bill.”

So, if the Utah bill (and the Mississippi bills, which also reference obscene materials) would be limited in their impact and accomplish little in stemming what their authors see as a flood of online pornography inundating their states, what’s the point?

“Given the First Amendment protections afforded to sexually-explicit media, it is difficult for lawmakers in the U.S. to find ways to regulate adult content,” Walter said. “But bills like this allow politicians to declare victory without accomplishing anything significant.”

This sounds about right to me. How else do we explain the establishment a “porn ban” that can be overridden by paying a small fee to turn off a filter, or a porn-labeling provision which applies only a fraction of the porn available in a state?

On the other hand, if passing ineffective measures that will have little practical impact is all it requires to allow these legislators to declare victory in the War on Porn, maybe we should count ourselves lucky.

Tank photo by Skitterphoto from Pexels