Santorum has proclaimed “The Obama Administration has turned a blind eye to those who wish to preserve our culture from the scourge of pornography and has refused to enforce obscenity laws.” He pledges that he will “vigorously” enforce laws that “prohibit distribution of hardcore (obscene) pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops and through the mail or by common carrier.”
What constitutes obscenity remains maddeningly vague. Indeed, many find laughable Supreme Court Justice Potter Stewart’s test for pornography in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
Santorum shows the dangers of the fluid test described by Stewart. What Santorum would consider obscene is obviously far greater than millions of Americans who either work or patronize porn sites. Federal courts are reluctant to define movies or pictures as obscene based on such different opinions in society. For that reason, Santorum’s view of the standard appears to fall well outside of the accepted view of the case law. Prohibitions have focused on areas like child pornography, snuff films, and animal abuse. Sexual films of consenting adults that are watched by consenting adults are generally presumed to be pornographic but not obscene. The Court has also emphasized the difficulty in determining what is obscene and what is artistic or literary. For many years, great novels were defined as obscene under the community standards that Santorum appears to favor.
However, the Supreme Court’s poorly conceived precedent in the area has left the standard of obscenity ill-defined — creating an opening for someone like Santorum to seek to limit what adults can view as part of new crackdown on immoral lifestyles and values.
Santorum’s suggestion of a crackdown, however, ignores the fact that this material is widely available on the Internet with thousands of foreign sites. An attempt to prosecute standard pornography would result in bizarrely uneven enforcement. It would also attempt to criminalize an industry that is supported by millions of Americans much as prohibition sought to criminalize alcohol consumption. The difference is that today’s “speakeasies” are found in virtual space on the Internet. He may find that Wall Street would be a bit peeved with the attempt to eradicate an over $12 billion a year industry.
I would bet against such an expanded effort in the courts if it targeted explicit sexual acts between consenting adults. Such a crackdown was attempted under Ed Meese in the Reagan Administration with limited lasting effect.
Ironically, the more promising avenue for regulation would not be to try to widen obscenity laws but to extend prostitution laws. There has always been an odd contradiction in criminalizing prostitution between consenting adults while allowing the same person to accept money to have sex before millions. For libertarians, the prohibition on prostitution by consenting adults is a denial of individual choice and freedom. I oppose laws that criminalize such personal choices on morality grounds. However, if prostitution laws are valid, it would seem easier to extend them to sex for money in pornographic settings. I would argue against such laws on constitutional grounds, but I would likely be in the minority. I believe that such films have first amendment protection beyond the privacy protections afforded to consenting adults. (Privacy itself is hard to maintain when you are filming sexual encounters for millions to view.).
Regardless of the approach taken by Santorum, what he is advocating is a return to the enforcement of morality codes through criminal prosecution. It would threaten tens of millions of adults to conform their conduct to the moral dictates of Santorum and his followers. It is the type of state-imposed morality that we have criticized in other nations. Indeed, a Santorum Administration might want to consider one more commission — a favorite reaction of Washington in appeasing the public. He could call it the Commission for the Promotion of Virtue and Prevention of Vice.
Source: Daily Caller