Protecting Pornography: An Examination of Legal Support

Sonia Okolie
COL ’15

There has been much controversy in the law regarding the creation and regulation of pornographic content. Pornography, and the laws concerned with it, considers the proper intersection of sexual repression and sexual representation. It first becomes necessary to identify a working definition of the term “pornography,” especially in relation to standard conceptions of obscenity that have driven legislation. The crux of the debate surrounding pornography is concerned with the dehumanizing and over-sexualized portrayal of women in this forum. Thus, many insist that pornography both condones and encourages violent behavior against women by depicting such sexual acts. This is the concern that drives much of the anti-pornography advocacy. However, it is essential to determine whether the regulation of pornography would be a violation of the rights guaranteed by the First Amendment to the Constitution. The other factor to consider in this matter is whether pornography violates the rights of others, since this would provide a reasonable basis for banning such material. After careful consideration of the relevant case law, freedoms protected by the First Amendment, and possible consequences of pornographic material, it is clear that pornographic material that is not obscene should not be regulated by the government.

Considerations of Obscenity and the First Amendment

The freedom of speech protected under the First Amendment does not extend to obscene speech. This obligated the Court to clearly define obscenity in considering speech that contains sexually explicit content.  In the 1973 case Miller v. California, the Court established the current definition of the term pornography. A work may be deemed obscene if:

(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[1]

The Miller case held that unless a work fits the aforementioned definition and is shown to be obscene, it may not be regulated.

The main support for why pornography restriction is unconstitutional is based on its relation to the freedoms protected by the First Amendment. This amendment states that “Congress shall make no law… abridging the freedom of speech, or of the press.”[2] Of course, all uses of printed words or pictures do not automatically ensure protection, or even consideration, by the First Amendment.[3] Indeed, the reason that pornography arises for such consideration is the nature of the sexually explicit content it contains.

The American Booksellers Association, Inc. v. Hudnut case of 1985 addressed the definition of pornography set by the Indianapolis Ordinance of 1984.[4] The Court here found the definition and prohibition proposed by the ordinance unconstitutional.  Any speech that treats women as “submissive or enjoying humiliation” is unconstitutional, even if it is merely including this viewpoint to establish what should not be allowed.[5] Further, it is often only the “most thoroughly explicit” material that is “overwhelmingly devoted to patently offensive and explicit representations, and unmitigated by any significant amount of anything else” that is considered legally obscene.[6] Although obscene works of art are not protected by the First Amendment, this does not imply that all content that people find offensive should or will also be unprotected by the same amendment.[7] This is a key point in the argument against government regulation of pornography: simply because pornographic material is sexually explicit does not automatically make it obscene. It cannot be denied that non-obscene pornography is an expression of free speech. As such, it must be included within the protections guaranteed in the First Amendment. Regulating the production and distribution of pornographic materials would effectively be an abridgement of free speech, thus making it unconstitutional.

Pornography and Individual Autonomy

The decision to make or be featured in pornographic material obviously falls within the notion of individual autonomy, but the decision to view such content does too.[8] In Stanley v. Georgia, Justice Marshall gave the dissenting opinion that “[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”[9] This is necessary to keep in mind because it signifies that a person should be able to watch pornographic material if he so chooses, regardless of whether it may deemed offensive by someone else. The next dimension of this argument is whether pornography inherently violates the rights of others. If it does, it is necessary to ascertain whether the harm done outweighs the value of the material.

A Violation of Women’s Rights?

The consensus of anti-pornography advocates is that pornographic materials perpetuate gender stereotypes and promote acts of violence against women. They cite proof of causation between men viewing pornographic films and committing violent crimes, such as rape and assault, against women. Since the feminists in favor of pornography regulation cannot look to obscenity laws to support their opposition, they conceived a different approach. This approach calls for the regulation of pornography on the grounds that, by subordinating women, it directly infringes upon their civil rights.[10] The Indianapolis ordinance enacted in 1984 restricting pornography as a violation of women’s civil rights, focusing upon pornography’s correlation with violence. A definition of pornography was established in the ordinance, where the “graphic sexually explicit subordination of women” delineates several conditions of negative portrayals of the women involved.[11] Such conditions include any presentation of women as “sexual objects, things, or commodities” who may or may not “enjoy pain or humiliation,” who “experience sexual pleasure in being raped,” who are physically injured, tortured, or degraded, who are “whores by nature,” etc.[12]

Thus, a major component of the anti-pornography argument is the prevailing presentation of women as sexual objects. This dehumanization then leads to further degradation involving physical violence and demeaning depictions of women. But it is important to recognize that not all pornography presents women more as sex objects than as people. Additionally, the representation of women as sex objects does not automatically take away their personhood, considering, for instance, celebrities like Madonna who are famous for their sexualized image in society.

The Issue of Violent Pornography

Of course, some pornography does exist which present women as mere sex objects and not as people. Generally, this appears to be the case for violent pornography. This is the material that depicts women being “abused, raped, tortured, or killed, in a way that is intended to be sexually appealing” to whoever is watching.[13] In this material, women are presented as the receivers of extreme, violent, and even cruel treatment by the men featured alongside them. In this way, women are often dehumanized to some degree as their bodies are violated in some way.

Violent pornography does infringe upon the fundamental rights of women because it portrays and perpetrates real acts of violence against women. Even though the women in this type of material most likely enter into these situations contractually, and therefore consensually, they sometimes suffer from serious physical injury. This injury should not be allowed to continue for the sake of supposed art or enjoyment. Further, promoting acts of violence against women through pornography does have the potential to put other women, outside of the industry, at risk. Therefore, by denying women recognition as human beings and threatening personal security, violent pornography violates the rights of women.[14] The question is then what should be done about this kind of pornography.

It seems to be both obvious and necessary to prohibit violent pornography. If someone enters into pornography, where there are acts of violence committed against her, and the violence is not simulated, but real, this is wrong.[15] Further, the First Amendment’s protections should not extend to such content. The strongest argument for extending the freedom of speech protection to pornography is that it promotes self-fulfillment for some people. This certainly may be true for less severe, violence-intensive, forms of pornography. But an opponent of regulation would then say that even if violent pornography infringes upon women’s rights, this injury is “outweighed by the contribution that it makes to the self-fulfillment of those who produce or consume it.”[16]

This is an unconvincing and difficult argument to make for a few reasons. If people find fulfillment in viewing violent pornography, the fulfillment must “derive either from what is distinctive to such pornography (the portrayal of violence), or from what is not distinctive to it.”[17] In the latter case, there would be no reason to legally protect violent pornography because the fulfillment could then come from other sources that do not violate the rights and safety of other people. However, if the fulfillment is derived from the fact that the material at hand contains violence, then it must be due to the portrayal of women in a violent and degrading way. This is inherently wrong, so even if some viewers obtain a sense of fulfillment from violent pornography, this cannot be considered a good reason to protect it.

Female Empowerment through Porn

The reasons behind anti-pornography sentiments are relatively easy to understand. Many feminists only see pornography as a vehicle for women to be stripped naked, displayed, abused, and humiliated for men’s entertainment. This viewpoint emphasizes the fact that pornography is a “male invention, designed to dehumanize women, [and] reduce the female to an object of sexual access.”[18] Further, this opinion is usually accompanied by the claim that there is a large percentage of women in the pornography industry who were coerced into this line of work. Additionally, it is asserted by those in favor of the ban that women who work in pornography face the stigma that comes with it, which often causes shame and ostracism. This becomes a self-reinforcing process by which some women have no choice but to enter into this industry, are subjected to degrading and humiliating treatment, are unable to find work elsewhere because of their past employment, and are forced to continue working in pornography. Although this is a fairly common opinion among those in favor of the regulation, it fails to see that pornography can have some element of power as well.

The sexual behavior depicted in pornographic films and photos are a direct expression of the woman’s sexual autonomy and ownership of her body. The aforementioned feminist perspective overlooks the fact that the sexual acts in such films and photos are almost always the result of a contractual agreement beforehand. This contract is a symbol of legal written consent, by which the woman in question is technically consenting to the sexual acts that follow. This implies that the women depicted in pornography do have a say in choosing to become involved. There are, of course, individual extenuating circumstances that make it so that one finds pornography to be a last resort in employment. However, the law cannot make special accommodations for each individual’s specific circumstances, nor would it be fair to ban all pornographic content based on one person’s situation.

By removing the popular outlet through which men find sexual gratification, this ban would remove it for women too. Often, it seems that anti-pornography advocates neglect the fact that 9.4 million women access adult websites each month.[19] This statistic proves that there is a substantial market for women who enjoy watching pornographic material. Therefore, a ban on this material would also negatively impact the same women who are intended to be protected by the ban. Regulation of pornography would also constitute the sort of legislation that “reinforces sex-based stereotypes without effectively improving women’s circumstances.”[20] By emphasizing women’s need for protectionist measures and her vulnerability to degradation, this restriction would hurt women a great deal, perhaps more than it would help them.

Proposed Solution

The concern for the treatment and safety of women stemming from pornographic representations is legitimate. It is for this reason that there should be civil remedies provided by the law available to those who are in any way harmed in the process of the production of pornography; however, the restriction of all pornographic material would not only be a step too far, but unconstitutional so long as it is not obscene.

Instead, there should be a movement to regulate material that falls within the category of violent pornography, thus limiting the available pornography to only that which does not infringe upon the rights and safety of others. If the definition of obscene were extended to apply to violent pornographic content, this would make it so that it is no longer protected by the First Amendment. As stated earlier, this genre of pornography violates the rights of others by depicting acts of violence that often present real danger to those involved. This is not the type of material that should be allowed to continue being produced. Violent pornography is not art, and does not serve a positive purpose; to borrow from the established definition of obscenity, it inherently “lacks serious literary, artistic, political or scientific value” and should be regulated by law.

It is necessary to recognize that there is no guarantee that making pornography illegal will stop people from regarding women as sex objects.  Pornography serves as a necessary way to remember that men and women should be treated as equals, and therefore equally have the right to watch and participate in the sexual acts to which they consent. Regulating pornography would be unconstitutional, but more than that, it would be unconstructive. Not allowing women to explore and express their sexuality through this medium would not help women’s cause, it would stunt it.

[1] Miller v. California, 413 U.S. 15 (1973)

[2] U.S. Const. amend. I

[3] Op. cit., U.S. Dep’t of Justice, p. 251

[4] American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985)

[5] Op. cit., American Booksellers

[6] U.S. Department of Justice, “Attorney General’s Commission on Pornography: Final Report” (Washington, D.C., 1986), 260

[7] Id. at 256

[8] Steven J. Heyman, Ideological Conflict and the First Amendment, 78 Chi.-Kent. L. Rev. (2003) p. 20

[9] Stanley v. Georgia, 1969, 394 U.S. 557

[10] Op. cit., Lindgren, p. 418

[11] Id. at 419

[12] Id.

[13] Op. cit., Heyman p. 21

[14] Id. at 24

[15] Id. at 21

[16] Id. at 25

[17] Id.

[18] Susan Brownmiller, Against Our Will (1975) in Ralph Lindgren, et al., The Law of Sex Discrimination (Boston, MA: Wadsworth, 2011) 416-17.

[19] “Pornography Statistics.” Brigham Young University Women’s Services and Resources. https://wsr.byu.edu/pornographystats (May 2, 2014)

[20] Op. cit. Lindgren, et al., p.420

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