Regulating pornography

In the mid-1990s, while America was waking up to the intoxicating new experience of being online, lawmakers were waking up to the perils the new medium posed, especially for children. As pornographers raced to stake out valuable real estate in cyberspace, Congress rushed out the Communications Decency Act of 1996, designed to keep anyone too young to buy a Playboy magazine from accessing Playboy.com. Civil liberties advocates, however, quickly mobilized against this specter of “censorship,” and the Supreme Court, valuing adults’ right to porn above children’s right to innocence, quashed the law. A second congressional attempt, the Children’s Online Protection Act of 1998, lasted a bit longer, winding its way through the courts for six whole years before again falling prey to the remorseless forces of free speech absolutism.

By then, pornography of every description, including video depictions of violent and grotesque acts, was well-entrenched on the increasingly high-speed World Wide Web. By 2020, porn sites received more website traffic than Twitter, Instagram, Netflix, Zoom, Pinterest, and LinkedIn combined. The top porn site, Pornhub, is the 10th most-visited website in America. Even the 10,000th-ranked site gets 4 million views a year globally. The industry’s No. 1 market is under-age 18, a majority of whom now have their first sexual experience with a paid or coerced performer online—an experience that frequently shapes their whole subsequent sexual development, leading to addiction, depression, sexual violence, and sometimes suicide.

For 20 years, it looked like our society was content to simply look the other way in the face of this systemic child abuse, sacrificing the next generation on the altar not of Molech but of Asherah. That may finally be about to change.

Beginning in 2022, a series of states began passing laws to bring the online world into some conformity with the offline, requiring hard proof of age for accessing porn sites. One of these, Texas’ HB 1181, was appealed all the way to the Supreme Court this summer in the case Free Speech Coalition v. Paxton. Sensing an opportunity to finally restore sanity to our First Amendment law and some innocence to childhood, a massive coalition mobilized to file amicus briefs in support of Texas last month—a total of 27 representing neuroscientists, addiction therapists, technology scholars, medical professionals, state policy organizations, social scientists like Jonathan Haidt, and activists such as Laila Mickelwait (author of the recent bestseller Takedown: Inside the Fight to Shut Down Pornhub for Child Abuse, Rape, and Sex Trafficking).

Perhaps most impressive was the list of signatories in the brief from “major religious organizations.” The American Islamic Congress, the Latter-day Saints, the International Society for Krishna Consciousness, and the Conference of Catholic Bishops may not agree on much, but they all agree that “in an era when technological advancements make pornography available anytime and anywhere, religious parents need all the help they can get to protect their children.”

For all the buzz lately around “Christian nationalism,” it turns out that for the most urgent battles for our nation’s soul, one doesn’t need to be a Christian to see the big E on the moral eye chart. Indeed, one doesn’t need to be religious at all. One powerful brief was filed by the staunchly secular American Foundation for Addiction Research, lamenting that “we have to date allowed a legal regime that prioritizes the interests and sexual appetites of adults over the protection of the most vulnerable amongst us.”

Against the barrage of arguments mounted in defense of HB 1181, the porn industry plaintiffs have only been able to feebly repeat the claim that adults seeking to exercise their “constitutionally protected” right to browse hardcore pornography might be deterred by age verification out of a fear that their browsing habits might become trackable. As if any adult in 2024 expects to be able to browse the internet without tracking. The porn industry’s real fear is one they dare not voice: that requiring adults to pause and pass through an age gate to enter porn sites might provide a chance for the long-stifled voice of conscience to tug at them: “Should you really be here? Is this really harmless?” Like the tobacco industry 60 years ago, pornographers know their product is poison, and their only hope lies in keeping us so hooked we don’t stop to ask questions.

If the Supreme Court bucks precedent and upholds HB 1181, it has the potential to revolutionize not merely the legal status of the porn industry but also how we think about the internet more generally. In the offline world, we take for granted that there are age gates—there are any number of products that minors cannot buy and venues they cannot enter. The dividing wall between childhood and adulthood is one of the basic load-bearing structures of society itself. A quarter-century ago, however, we decided to dissolve this boundary online, and since then, we have migrated more and more of our lives there. Is it any wonder that our culture itself is dissolving in response? It is high time to recognize that the internet, increasingly, is real life and thus needs to be governed by real laws.