Rick Santorum is promising that a President Santorum would make all pornography illegal — or, rather, he would hire an attorney general who would interpret current anti-obscenity laws in a way pleasing to Santorum’s 18th century mindset. On his campaign website, Santorum claims that pornography is addicting, causes brain damage, is anti-family, and contributes to prostitution, misogyny violence against women, and sex trafficking.
America is suffering a pandemic of harm from pornography. A wealth of research is now available demonstrating that pornography causes profound brain changes in both children and adults, resulting in widespread negative consequences. Addiction to pornography is now common for adults and even for some children. The average age of first exposure to hard-core, Internet pornography is now 11. Pornography is toxic to marriages and relationships. It contributes to misogyny and violence against women. It is a contributing factor to prostitution and sex trafficking.
Every family must now be concerned about the harm from pornography. As a parent, I am concerned about the widespread distribution of illegal obscene pornography and its profound effects on our culture.
For many decades, the American public has actively petitioned the United States Congress for laws prohibiting distribution of hard-core adult pornography.
But a President Santorum will have a hard time making his dreams come true.
Current federal “obscenity†laws 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. Rick Santorum believes that federal obscenity laws should be vigorously enforced.  “If elected President, I will appoint an Attorney General who will do so.â€
In fact, current anti-obscenity laws make clear there is a difference between pornography and obscene works, and to be deemed “obscene” the work must meet all three standards of the Miller test:
- Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Of course, “the average person, applying contemporary community standards” varies from town to town and state to state — and there are few in this country who believe Santorum’s sensibilities fall any where near the average person’s, but it isn’t a long stretch to think that in many communities in America, the “average person” would find even vanilla gay porn “obscene.”
Thereon lies the problem with attempting to define “obscene.”
The Hill adds:
The former Pennsylvania senator argues that “current federal ‘obscenity’ laws 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.”
The Daily Caller, deciding to have some fun, published a piece today titled, “‘Vigorous’ Santorum crackdown may catch Internet porn viewers with pants down.” It notes:
Although the idea of Santorum vanquishing Internet pornography may seem far-fetched, a serious effort to combat online smut might actually be successful, UCLA law professor Eugene Volokh told The Daily Caller.
“If the government wanted to aggressively move against Internet pornography, it could do so,†explained Volokh. “Here’s the deal: In most parts of the country, a lot of pornography on the Internet would plausibly be seen as obscene.â€
There are a few approaches that Santorum could pursue in an attempt to eradicate Internet pornography. “It wouldn’t be that difficult to close down a lot of the relatively visible websites that are used for the distribution of pornography, if they’re in the United States,†said Volokh.
Santorum’s administration could take American-based porn distributors to court for violating obscenity laws, said Volokh, and have them shuttered. But that would leave foreign-based sites untouched.
To black out foreign sites, Santorum would likely need legislative action requiring Internet service providers to use “a mandatory filter set up by the government or by the service providers,†said Volokh.
But the government could also prosecute individual citizens who view porn, and already has the legal authority to do it.
“Although the Supreme Court says private possession is constitutionally protected, it has said that private receipt of [pornography] is not protected,†noted Volokh. “You can’t prosecute them all … but you can find certain types of pornography that are sufficiently unpopular†for easy convictions, he explained.
One last problem: sales in the pornography industry are estimated to be worth roughly $4 billion annually, maybe more. President Santorum’s “morality” notwithstanding, all his personal moral choices, from outlawing contraception to porn to abortion to… would kill the American economy and put literally millions of people out of work.
Good luck with that.