Criminal prosecutions in the United States for producing or distributing pornography featuring adult actors have gone the way of the eight-track tape and the videocassette. All are now museum pieces. The most recent figures available for the total number of federal prosecutions are for the Obama Administration from 2009 to 2017: none. None has so far been reported by the Trump Administration. Prosecutions at the state and local level are very rare.
Pornography, on the other hand, has become nearly ubiquitous.
The concurrence of these two developments suggests that reinvigorating criminal prosecutions for commercialized pornography (leaving aside, then, simple possession of material for one's private use) might stem the flood of pornographic materials. But would it? What can be (and should be) the role of criminal prosecution in tackling a phenomenon with which so many millions of people are involved, and which now enjoys considerable social approval? How can criminal law and its enforcement productively contribute to ameliorating what is, now, a widespread cultural problem?
The answer is that what has become a cultural force must be stymied chiefly by cultural counter-force. Effective social control of obscenity in a free, porn-saturated society calls for a creative, synergistic partnership among educators, pastors, journalists, and other culture-forming actors to morally stigmatize pornography as toxic to genuine reciprocity and mutuality in sexual relationships, as well as a standing threat to anything close to the healthy psycho-sexual development of children and teens. Public authority has an indispensable role to play in this partnership, too. For law powerfully shapes culture and thus shapes us - our actions, our attitudes, and our conception of right and wrong.
That stigma will produce many benefits. It will steer many people away from pornography. It will establish an authoritative benchmark for consequent adverse legal, social, and commercial policies about pornography. It will embolden moral criticism of those who continue to be involved in pornography. And it will make some, maybe even many, of them at least morally ambivalent about their actions. The end product would look much like the present cultural situation of, say, cigarette smoking, using racist language, flouting recycling norms, or committing adultery: some people do it, but far fewer than would in the absence of prevailing social norms against it, and everyone understands that doing any of these things is undesirable, embarrassing, regrettable. These things are never something to boast about or recommend to children for imitation.
There are many reasons why pornography should be the object of articulate and authoritative social disapproval. Here I should like to emphasize just one: the grave threat pornography presents in our wired world to children. Some seventy percent of America's children report viewing online pornography. The average age of first exposure to adult material is eleven. For them what happens on the screen has consequences off of it. One team of researchers wrote that "increased pornography exposure is associated with earlier and/or quicker onset of sexual activity, more permissive attitudes toward casual sex, and a higher likelihood of engaging in risky sexual behaviors such as anal sex, sex with multiple partners, and using drugs or alcohol during sex."
Juvenile access to online pornography is almost by definition unsupervised; if adults were nearby, one would expect (at least reasonably hope) that the juvenile's access would be terminated. For that reason and because the internet is so much like an open access, toll-free highway, there are many forms of serious and often criminal collateral damage inflicted on those - children and teens - who are by law incapable of effective consent: cyber-bullying, sexual harassment, online solicitation, sexting, and "revenge porn."
Our society's increasing emphasis on autonomous sexual identity and experience has obviously penetrated deeply into youth culture. Many grown-ups and even some institutions actively promote acceptance of what a child says about his or her sexual "identity" as prima facie authentic, and therefore deserving of adult respect. (The social debate about "transgender" children is one example.) Combined with adolescents' natural curiosity about all things sexual and with the allure of misbehaving online with one's peers, easy access to digitalized pornography makes for a perfect storm of childhood trauma. For all the scientific evidence shows that children's brains are most especially malleable, and subject to formation by intense experiences epitomized by sexual excitement.
The brute truth is that, unless adults are willing to make dramatic changes to their own moral and legal rules about pornography, we shall keep playing what amounts to a game of Russian roulette with the formation of our children when it comes to one of the most precious parts of their lives. This concern for the formative influences on the young does not arise solely from a concern for their proper continence and chastity during their adolescent and teen years. Even someone committed to a more modern sexual ethic and to the sexual agency of young people should be greatly concerned to maintain cultural taboos on the pornification of children.
Criminal law enforcement should therefore be stepped up against those who recklessly expose children to pornography. The particularly callous disregard shown by such malefactors for the child's well-being, as well as for his or her parents' rightful authority to educate their children, makes them proper targets for prosecution.
Which laws are we talking about? New York's basic "obscenity" prohibition (under which I occasionally prosecuted performers and sales clerks when I was a Manhattan prosecutor in the 1980s), is typical of state provisions. It criminalizes conduct by anyone who "produces, presents, or directs an obscene performance or participates in a part thereof which is obscene or which contributes to its obscenity." On top of all state laws of this sort sits a group of federal prohibitions, including bans on importing, mailing, and possessing with intent to distribute "any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion picture, letter, writing, [or] print."
Among the additional prosecutions that should be initiated in order to stigmatize pornography just as such would be some directed toward major traffickers of medium-grade pornographic fare, lest pornography as such be thought benign, and that only the nasty "extreme" stuff is pernicious. Even a few annual prosecutions in a given jurisdiction would serve well to affix the moral stigma that criminal conviction conveys. Occasional prosecution of even one large-scale trafficker might deter others like-minded. The occasional proceeding against a major distributor whose profit margins and predatory trading on other people's weakness of character make him particularly odious would be a welcome reminder of the social evils of pornography.
Yes, there is no practical way for law enforcement to effectively interdict the supply chain for pornography, which often originates overseas or in the privacy of bedrooms, and finds its way invisibly into so many hand-held devices. One might as well try to catch all the flies in a garbage dump as attempt to prosecute even a fraction of those accessing pornography on their computers. But judiciously selected criminal-law enforcement initiatives, if they are nested within an overall coordinated plan to stigmatize pornography, are to be encouraged.
These criminal-law components of any stigmatizing strategy should be supplemented by non-criminal legal initiatives. These could include government personnel and employment policies that establish that employees' use of government equipment to view pornography constitutes grounds for dismissal. These proposals could also include well-crafted legislation requiring any institution receiving government funds to enact and enforce stringent policies governing the unauthorized use of computers for viewing pornography. All such use would have to be forbidden as a condition of government funding.
Lastly, government actors - from the president on down to the local school board - should seize all appropriate opportunities to teach, by word and deed, that pornography is not a harmless pastime. It is nothing less than a cultural plague.