It’s not often that you find a cause that unites a progressive like feminist professor Catharine MacKinnon of the University of Michigan Law School and conservative Catholics and evangelicals. A crusade to pass anti-porn ordinances and statutes was just that cause in the early 1980s. Minneapolis came close to passing such a law twice. Indianapolis passed a version of the law, but it was later ruled unconstitutional. The effort got very little traction anywhere else.
The specifics of MacKinnon’s legal theory didn’t find a sympathetic judicial audience. A law that encumbers anything resembling speech is constitutionally suspect from the start. If ever there was an example of ill-fated activism that all of us should wish had succeeded, it was that one. It is hard to imagine something as demonstrably harmful to so many that has been able to hide from meaningful regulation or constraint. Pornography has succeeded in doing just that, and there is no serious person who can argue that the results have been anything other than devastating.
Jo Bartosch and Robert Jessel’s new book, Pornocracy, details the staggering scale of the cruelty, degradation, and dehumanizing effects of a world in which sexually explicit material is so ubiquitous. This book is hard to get through because it isn’t terribly difficult to read concrete reality into the statistics that the authors present. In a room of 10 men, nine regularly view pornography. Every third man that you pass on the street would force a woman to have sex if he could be assured that no one would find out. No wonder that when posed with the question of whether they’d prefer to encounter a bear or an unknown man in the woods, nearly every woman would take her chances with the bear.
The stats don’t end there. The number of women injured from extreme or dangerous sexual activity is steadily rising in the general population. Is this surprising in light of one French study that found that 90% of all pornography includes “verbal, physical, or sexual violence toward women”? Porn actors have a suicide rate six times higher than their peers outside the industry, and 69% attempt suicide. What else should we expect when 88% of them were victims of childhood sexual abuse and 83% exhibit “clinically significant signs of PTSD”?
This short, incisive book is one of the most difficult books I’ve ever read. It is even harder to review. I want to assert without principled defense that the entire industry should be dropped to the deepest part of the ocean, that those who are profiting—from producers to credit card processors—should be put under the jail, and that all this should happen without any consideration of the legitimacy of the mechanism by which this end is realized. Pornography is an indefensible scourge for those who use it and create it, as well as anyone who depends on or interacts with those who do. It has profound individual and social consequences with which almost all of us are familiar. It needs to be eradicated. Burn the crops. Salt the earth. Eradicated.
But, as John Adams reminded us, “We are a nation of laws and not men.”
MacKinnon’s legal theory in the 1980s defined pornography in loaded political language. Further, she and her allies rejected traditional anti-porn arguments rooted in morally subjective “community standards.” Instead, they framed it as a civil rights issue. Most pornography, they argued, is a form of sex discrimination. It is a “practice of sex discrimination” that reenforces a system in which women are subordinated.
Frankly, the argument is so obscure and incoherent that the details don’t really matter. But the disadvantage that MacKinnon and her allies had in the 1980s is that porn had not yet proved to be as damaging as we now know it to be. She was right about one thing, though: Traditional laws relating to obscenity and public decency cannot do the heavy lifting on this issue.
Obscenity prosecutions are exceedingly rare. Landmark cases tend to stand alone rather than spark a series of related litigation. The only users or creators of pornography that ever face justice are those who create, distribute, or possess sexually explicit material that includes children. If a traumatized survivor of childhood sexual abuse who suffers from PTSD and faces a serious risk of suicide is subjected to sexual violence on film, every decent person would rightly find that abhorrent. That is the essence of a violation of community standards of decency. Yet if that same woman has signed a contract, received payment, and is deemed a willing participant in conduct that is painful, humiliating, dehumanizing, and plainly inhumane, there is little prosecutorial will to pursue a criminal case. It would require overcoming substantial constitutional and evidentiary barriers given the current state of what the law views as protected speech.
A viable path forward for criminalizing pornography is to return the issue to the states. The federal government has no plenary police power. This is the power of the states to legislate to protect the health, safety, morals, and general welfare of its citizens. We’re often told that we should make laws and enact policies once the “science is settled.” If we’re going to “trust the science,” it is clear that the states should use this aspect of their sovereignty to eradicate pornography.
The hurdle to overcome, however, is the present state of First Amendment jurisprudence that would restrain states’ ability to do so. This was the case with abortion. Roe v. Wade and then Casey v. Planned Parenthood maintained that there was a right to abortion found in the U.S. Constitution, which meant that states had few options in terms of regulating or criminalizing abortion. Dobbs v. Jackson Women’s Health Organization not only overturned these cases; it performed a miracle. It inspired the left to rediscover federalism as activists moved the fight over abortion to the states.
In essence, this would not require the Supreme Court to find that pornography is not protected speech, although there is already a cogent and convincing legal argument that it is not. When a legitimate state interest—like curbing the social and individual horrors of widespread pornography use—collides with an explicit constitutional right, courts evaluate the legislative solutions under the most stringent standards. There are state solutions that could certainly stand up to this scrutiny.
As with many social ills, however, it is unfortunate that the power to effectuate systemic change lies with those without an incentive to change it. The staggering stats about the deep and widespread use of porn do not exempt state legislators and other policymakers. There are vast numbers of people in every group that view pornography regularly. There are likely legislators who may otherwise be willing to act. But they also may be paralyzed by guilt or, worse, some sort of culpability in something salacious or even illegal.
Bartosch and Jessel have done outstanding work in pulling together disparate shocking studies and statistics into a compact and accessible book that makes the case that porn is a problem that must be addressed. I hope that as a society we can muster the political will to do so. It is difficult to imagine what’s next or how this problem can become worse. But unless we grapple with this now, we’ll live to see the next iteration of a world deeply damaged by the ubiquity of dehumanizing material that begets violence, vulnerability, isolation, and exploitation.
