CYBERSPACE—Just about every attorney who blogs on the internet is familiar with Eugene Volokh, the Russian-born attorney who's the Gary T. Schwartz Professor of Law at UCLA, and who oversees his titular legal blog, The Volokh Conspiracy, which features commentary by prominent attorneys from around the country. Perhaps most of interest, though, is that Volokh wrote the entry on "Freedom of Speech and of the Press" in the conservative-leaning Heritage Guide to the Constitution, in which he noted, "There was only one state law banning pornography, and it appears to have been unenforced until 1821."
So perhaps it's not so surprising that earlier this week, Volokh posted a critique of the Republican platform plank that read, "Current laws on all forms of pornography and obscenity need to be vigorously enforced."
In the critique, Volokh notes that "there's lots of porn of all varieties out there on the internet," and that some of it may be seen as offensive to community standards, either locally or nationally—but that it makes no sense to try to prosecute it.
Of course, not being very familiar with the adult industry, Volokh makes several "rookie mistakes" in his analysis. For example, when he states that "even if every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack? It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie," it's clear that he doesn't know that American porn is sought and prized by porn fans the world over, and American actresses considered overall to be the world's best sexual performers. (He even suggests that if American porn production were stopped and its manufacturers sent to prison, foreign producers could continue to distribute older American product because "I doubt that the imprisoned American copyright owners will be suing them for infringement.")
Nonetheless, Volokh sees three (and only three) likely outcomes from increased targeting of porn by the Justice Department:
1) Even if most or all of the pornographers are convicted and jailed, "consumers will continue to be able to get more than they ever wanted on the Internet." He further doubts that those convictions will change consumers' attitudes about the "morality" of the genre, and "it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted."
2) Assuming the government realizes that people are accessing (foreign) porn websites as frequently as they previously did American ones, "[t]he government gets understandably outraged by the 'foreign smut loophole'" and "unveil[s] the solution, in fact pretty much the only solution that will work: Nationwide filtering ... The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks." (And yes, he seems to understand fully the First Amendment ramifications of such a move: "[b]ut it's the only approach that has any hope of really reducing the accessibility of porn to American consumers," so as far as the feds are concerned, it'll be "First Amendment be damned!")
3) But when even that doesn't work, the government can always decide to lay off targeting either domestic or foreign producers and concentrate on the whole reason the industry exists in the first place: the users. Volokh's prediction is that the government could set up phony porn sites that would look like the offshore sites consumers are used to seeing, offer to sell the stuff to consumers in the U.S., "[t]hen arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. §1462," which is "Importation or transportation of obscene matters," a section under which many producers have been convicted over the years.
There are, of course, a couple of problems with that, the main one being that the U.S. Supreme Court has already distinguished "pornography" from "obscenity," ruling the former to be legal and the latter not. However, Volokh suggests that the recent case of U.S. v. Whorley, might be applicable. For those who don't recall the case, in December, 2005, Dwight Whorley, an employee of the Virginia Employment Commission, used his office computer to download "obscene Japanese anime cartoons that graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males" as well as some actual child porn. Even though some of the "obscene material" was merely cartoons, his conviction on that material was upheld by the Fourth Circuit Court of Appeals, and in 2010, the U.S. Supreme Court declined to revisit the case, leaving Whorley to cool his heels in the federal slam for 20 years.
"As best I can tell, this statute has recently been used only as an adjunct in child pornography prosecutions, where the prosecutors think the person is trying to get child pornography but add a receipt of obscenity charge just in case they can’t prove the child pornography charge," Volokh admits. "But it is a 'current law[] on ... obscenity,' out there to be used."
"Heck, lock each pornography viewer up for several years like you would a child porn buyer," he continues. "Make him register as a sex offender. Seize his house on the theory that it’s a forfeitable asset, since it was used to facilitate an illegal transaction. All because he, or he and his wife, like to get turned on by watching pictures of people having sex (or perhaps just pictures of people having sufficiently kinky sex, or pretending to have sufficiently kinky sex). Then repeat for however many people it takes to get everyone scared of the Smut Police."
Is that the Republican "wish list" for porn? You bet it is!
So as Volokh sees it, there are only three possible outcomes to a federal crackdown on all porn: Either it will be largely ineffective because the feds can't control what's posted on foreign websites, or through mandatory filtering, the government can require all ISPs to block any sexual content from reaching Americans' computers ... or "[t]he crackdown on porn will turn into a full-fledged War on Smut that will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers."
In his article, Volokh throws the whole issue out for discussion among his blog's readers, many of whom are attorneys, and as anyone who's paid close attention to the various clashes between adult content producers and the government knows, the history of that interaction is far more complicated than the scenarios Volokh lays out—not the least of which is the fact that the Supreme Court ruled more than 40 years ago in Stanley v. Georgia that citizens can legally possess even obscene material, and more recently that at least some porn passes the government censors' "sniff test."
But for Republicans, there is no such thing as "legal pornography," so Volokh's article is valuable in that it points out that even if the religio-conservatives get everything they want in an Attorney General and elect everyone they want to Congress, their "war on porn" will still fail ... unless they seriously plan to put over 100 million people in prison for watching other people fuck each other.
