Should Pornography be Protected by the First Amendment

Porn is by no means natural. In modern day context, pornography is manufactured “explicit media” which is commercially or amateurishly produced for the viewing by others who are looking for some sort of sexual gratification. The internet acts as the main hub of these productions; anyone with internet access and a computer device has entry to tens of millions of pieces of pornographic content. Archeologists have uncovered evidence that demonstrates pornography has existed long before the internet though. For example, the live sex shows that took place in ancient Rome. This proves that people have a historical yearning to seek out sexually explicit material, and in 2018, that urge is no different.

There’s been a long-standing debate between the religious right, the porn industry, mothers, feminist, and constitutionalists over whether or not pornography should be protected by the First Amendment. The religious right, mothers and some feminist argue it shouldn’t be, while the ACLU, the porn industry and other feminist argue it should be. The opposition claims that pornography was not intended to be protected by the first amendment because it’s not ‘speech’; however, they are wrong in this argument because plenty of other ‘non-speech’ is protected by the Constitution. Flag burning being a perfect example of this. Pornography should absolutely be protected by the First Amendment and the opposition should stop calling for its censorship because it would set a dangerous precedent of suppression.

It’s also important to note that women and men do not agree on what constitutes pornography, therefore there can never be a true and just ban on pornography. One thing should be made absolutely clear, there’s an unconditional limit on what should be legal relating to porn. I say this to eliminate the predisposition that assumes porn advocates don’t have morals and don’t believe in any government controls. Susan Jacoby demonstrates this idea perfectly in her essay “A First Amendment Junkie”:

When I say I believe unreservedly in the First Amendment, someone always comes back at me with the issue of “kiddie porn.” But kiddie porn is not a First Amendment issue. It is an issue of the abuse of power – the power adults have over children – and not of obscenity (“Current Issues and Enduring Questions” 57).

The depiction of minors, abuse, or rape mustn’t be protected under the first amendment in any form, and all law-breaking must be punishable by the court. That should really go unsaid, but as I read opposing viewpoints from authors like Susan Brownmiller, who believes that pornography has “everything to do with the creation of a cultural climate in which a rapist feels he is merely giving in to a normal urge and a woman is encouraged to believe that sexual masochism is healthy, liberated fun” (“CIAEQ” 69), I thought it crucial to include boundaries early on so there’s no confusion about my definition of pornography.

The second reason pornography should be protected is because other viler speech and actions are safeguarded by the first amendment. White supremacists are free to walk through Charlottesville chanting racial epithets, and homophobic protestors can protest the funerals of deceased homosexuals. These liberties even extend to unlikely media, like the game Grand Theft Auto, wherein the mission of the game is to commit atrocious crimes against humanity in order to pass through levels. Susan Jacoby said it best in her essay, “A First Amendment Junkie,” “it is ridiculous to suggest that porn shops on 42nd Street are more disgusting to women than a march of neo-Nazis is to survivors of the extermination camps” (“CIAEQ” 56). In other words, how can someone advocate for potentially harmful speech, and at the same time be so steadfast in their opposition to porn, which is typically a private affair that doesn’t affect others.

In contrast to Jacoby, feminist like Susan Brownmiller claim that “the First Amendment was never intended to protect obscenity” and that “we live quite compatibly with a host of free-speech abridgments” (“CIAEQ” 70). One of her primary examples is the ban on shouting “fire” in a movie theatre. This example is flawed because she fails to mention that yelling “fire” in a movie theatre is both threatening and creates a potentially harmful situation. Any speech that impedes on other peoples’ rights to safety should be against the law. So, I do agree with her when she says yelling “fire” in a movie theatre should be banned, but I disagree that it’s comparable to pornography, which doesn’t impede on anyone’s rights. In regard to the First Amendment, authority should only interfere when peoples’ rights are being trampled on.

Americans shouldn’t rely on the government to tell them what they can and can’t watch, this is propaganda 101. When a society relies on government to control what information is and is not censored, rights are forfeited. This can lead to a risky pattern of increased censorship. People and organizations like the ACLU are weary that once you start abridging certain kinds of speech, a precedent is set, and more and more speech becomes censored. In “A First Amendment Junkie,” Jacoby argues there’s an “impulse toward censorship on the part of people who used to consider themselves civil libertarians and a more general desire to shift responsibility from individuals to institutions” (“CIAEQ” 57). How can people ask the government to ban porn and at the same time demand that government stay out of other areas of their personal lives? Individuals should ultimately have the final say in how they deal with the issue of pornography. It’s the responsibility of parents and educators to teach children about the dangers and immorality of porn and to edit channels in which porn might reach their children.

In “Let’s Put Porn Back in the Closet,” Susan Browmiller makes an argument in opposition to this idea, she says, “to buy a paper at the corner newsstand is to subject oneself to a forcible immersion in pornography, to be demeaned by an array of dehumanized, chopped-up parts of the female anatomy, packaged like cuts of meat at the supermarket” (“CIAEQ” 70). She’s believes that anything resembling pornography should be outlawed because there’s no way to avoid it without the help of government censorship. I know from personal experience that I’ve gone weeks without having to immerse myself in anything sexually explicit, so I find what Brownmiller said really hard to believe. Yes, I do bump into some ‘obscene’ billboards or magazines on occasion, but nothing that isn’t out of my mind two seconds after I look away.

If those who oppose porn and believe it to be demeaning and immoral want change, then they must take the hard road and affect public opinion on their own. They shouldn’t rely on government for a quick and easy authoritarian fix. Those in favor of pornography might argue the same as Stoya argued in her New York Times article, “Can There Be Good Porn?”, What right do we have to dictate the way adult performers have sex with one another, or what is good and normal, aside from requiring that it be consensual?” The matter of obscenity is subjunctive – what is obscene to one person may not be obscene to another, so government shouldn’t get to make a final judgement. However, it is necessary for government to be involved in certain operations; one such operation is the monitoring of content for illegality. In this new era, the internet allows for an almost instantaneous spread of an almost unlimited amount of content. There is going to be some content that pushes or extends past the boundaries which I defined earlier; in order to combat this, society and government must work together to prosecute perpetrators whom abuse those boundaries. Protections can be put in place for people and pornography at the same time, it’s not such an impossible proposition.

Pornography has been around for centuries and it’s not going anywhere. This debate will linger on, but eventually people are going to come to their senses and realize pornography ought to be protected under the first amendment. For if it’s not, then what else will become censored. Remember not every explicit image can be lumped in with pornography – as I stated earlier, “kiddie porn” and other abusive or nonconsensual content should be in its own category and prosecuted to the fullest extent of the law.

Lastly, other acts of free-speech which are far more hideous than porn are shielded by the First Amendment; thus, pornography should receive at least equal protection.

Personally, I don’t think porn is moral, in fact, it probably has negative societal effects, but that doesn’t disqualify it from being protected by the First Amendment. I don’t want to live in a censored society. People should continue to work on the issue through their communities and through education and information campaigns. Government censorship is not the solution.