Few modern dogmas are more bewildering than the idea that pornography is “speech.” In response to SB593, my bill to abolish pornography in Oklahoma, virtually every detractor is laser-focused on the supposition that it violates their First Amendment freedoms.
Like their cohorts in the pro-abortion movement, it is not surprising that pornography’s advocates (imagine publicly outing yourself as a pornography advocate) appeal to “choice” rather than the characteristics of the disputed conduct because there is simply no defending the conduct.
What kind of “choice” are we talking about? The “choice” to allow the most hardcore, obscene, and often abusive material ever imagined by the human mind to be easily accessible by anyone with a few clicks of a button? The “choice” to live in a society where the average age of first exposure to hardcore pornography is 12 years old? The “choice” to tolerate the reality that 15 percent of children are exposed to hardcore pornography before they graduate elementary school?
That choice? It sounds like a choice any halfway-decent person would emphatically reject.
Pornography is only ever degenerate material that destroys marriages, destroys lives, and steals the innocence of the young. It is pure cancer to the soul and corrosive acid to the moral fabric of society, all while having no redeeming value whatsoever.
Prostitution with a Camera is Still Prostitution
Pornography is not “speech” in any meaningful sense. Prostitution is a crime, and rightly so. That is, unless the act is recorded on camera and published for all to view. Then, lo and behold! Prostitution magically becomes protected speech and the paramount example of what the Founding Fathers fought a revolution to protect!
What are we doing here? No one seriously believes that the policy outcome we have arrived at is rooted in serious lawmaking and judging. But degenerates want porn, so these talking points are paraded about like a kinked-out perv flashing kids at a pride festival.
Nonetheless, activist judges have ruled according to these demented ideas.
The Legal Case Against Porn as Free Speech
As it often is, the Common Law is instructive here. In Barnes v. Glen Theater (1991), Justice William Rehnquist wrote for the plurality that states can regulate public nudity at strip clubs because “Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of ‘gross and open indecency’ in Winters v. New York.”
In other words, if public indecency and nudity were common law crimes enforced by the Founding Fathers and early Americans during the time immediately following the First Amendment’s ratification, then prohibiting public nudity cannot be presumed to violate the First Amendment.
Furthermore, Supreme Court precedent holds that nudity can be prohibited behind closed doors in strip clubs. Thus, it can certainly be prohibited on the internet, which has become a setting far more public than any club.
More recently, the Supreme Court established the Miller Test in Miller v. California (1973). According to the test, content is “obscene” and can therefore be prohibited if:
the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (“prurient” meaning something that focuses attention on sex not in an academic setting but primarily as an appeal to the base sexual instincts)
the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law, and
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
There is no question that modern pornography appeals to the prurient interest and lacks serious literary, artistic, political, or scientific value, satisfying points one and three. The only thing missing is point two: a state law specifically defining pornography according to Miller’s definition of obscenity and prohibiting it. That is why I filed SB593.
In response, pornography advocates point to Reno v. ACLU (1997), in which the court struck down the 1996 Communications Decency Act. But it is very important to assess why they struck it down.
Primarily, it was because the act prohibited content that was not only “obscene” but “indecent.” The latter is a term that the court ultimately ruled unconstitutionally broad and vague. The act was not well tailored to the Miller Test.
Further, Reno also rested on the premise that “the Internet is not as ‘invasive’ as radio and television.” How is that assessment looking in the year of our Lord two-thousand and twenty-five?
Public Opinion Shifting
Not only is state prohibition of pornography permissible according to the common law, common sense, and Supreme Court precedent, it is also gaining increased public support. A 2024 YouGov poll found that support for a total pornography ban was evenly split among registered voters at 42-42, with 16 percent unsure. Republicans support banning porn by greater than two-to-one margins, with 60 percent in favor compared to just 27 percent opposed.
As pornography becomes more degenerate and widespread, support for prohibiting it is increasing. Republicans, especially those in safe red districts and states, can ban pornography knowing they have the support of their voters.
Imagine a Virtuous Future
Mayor Rudy Giuliani’s famously successful cleanup of New York City began with the removal of the porn theaters from Times Square. As David Marcus wrote: “It was not a minor policy, what [Giuliani] understood was that those coursing avenues are the public square, and porn was choking the life out of it. Today the public square is in the palm of our hands, and it is time to tear down the virtual porn theaters.”
My youngest daughter is six. Half of American kids her age will be exposed to hardcore porn in the next 6-8 years if we do not abolish pornography. We may have failed every generation of kids for half a century, but there is no reason we have to fail them going forward.
We are not duty-bound as Americans to tolerate the proliferation of prostitution footage. We are duty-bound not to. We must strive toward a society defined by virtue rather than vice. And we will not succeed in banning pornography until we rightly understand the free speech case for porn as the demented, abusive, society-destroying fiction that it is.
