Pornography, Obscenity, and the Limits of Regulation

Every argument about internet regulation eventually turns into an argument about free speech and pornography. Unsurprisingly, the topic isn’t frequently discussed in undergraduate computer science classes or books on software engineering; I don’t have anything new to add, but here are a few things I’ve learned over the years.

Every new form of media has gone through the same regulatory cycle with respect to pornography: initial criminalization, selective and often corrupt enforcement, and eventual legal accommodation. Photography, cinema, videotape, and the internet all followed this pattern without resolving the underlying questions: who is harmed by the production of pornography, who by its consumption, and whether law can address either kind of harm.

Obscenity law has a long history, but what counts as obscene has never been stable. The Hicklin test adopted in British courts in 1868 defined obscenity as “material tending to deprave and corrupt susceptible minds”, which was broad enough to criminalize medical texts and Victorian novels. The United States Supreme Court spent much of the twentieth century trying to build a workable standard, culminating in the Miller test in 1973, which requires that material be evaluated by contemporary community standards, appeal to prurient interest, and lack serious literary, artistic, political, or scientific value. What other countries treat as permissible differs substantially, and the differences track culture and political history rather than a principle-based theory of harm.

Feminist arguments associated with scholars like Catharine MacKinnon and Andrea Dworkin hold that pornography is not “free speech” in any meaningful sense. Instead, it eroticizes subordination, normalizes coercion, and shapes consumers’ attitudes in ways that harm women as a class. MacKinnon and Dworkin drafted model legislation defining pornography as a civil rights violation, which was adopted briefly in Minneapolis and Indianapolis before being struck down by federal courts. An opposing position, developed by scholars such as Gayle Rubin and Lisa Duggan, views this framework as paternalistic. They argue that it instrumentalizes feminist politics in service of conservative law enforcement, and that women’s agency includes sexual expression and performance.

The empirical research on harm from pornography consumption is genuinely difficult to interpret. Some surveys show correlations between heavy consumption and attitudes less favorable to women’s equality, but correlation does not establish causation, and it is not possible to randomly assign pornography consumption in controlled experiments. Qualitative research with teenage boys suggests that regular consumption of pornography shapes sexual scripts and expectations in ways that survey methods may not fully capture, particularly regarding what young men understand as normal sexual behavior and what they expect from partners.

The internet radically altered the economics of the pornography industry. The shift to free ad-supported streaming eliminated much of the revenue that previously supported professional production, and the studios that had paid for sets, lighting, and professional performers largely collapsed or consolidated. What replaced them was a combination of large platform businesses aggregating user-generated and professionally produced content, and a gig-economy model in which performers manage their own distribution through platforms like OnlyFans. Working conditions in the surviving professional sector are not well documented, and attempts to organize performers have met the same resistance that gig-economy organizing faces everywhere.

Revenge porn—the non-consensual distribution of intimate images—did not exist at scale before smartphones and social media created both the images and the distribution infrastructure. Documented harms include psychological injury, professional damage, and in some cases violence, but legal responses have varied substantially: Australia criminalized it federally in 2021, and the United Kingdom enacted specific legislation in 2015 and strengthened it in 2023, but the United States has some state-level laws but no federal statute. (Call me cynical, but I believe that if elderly male congressmen were frequent targets of revenge porn, those laws would exist by now.)

The same infrastructure that enables pornography distribution has also given LGBTQ+ young people in rural or geographically isolated areas access to language, peers, and identity frameworks previously unavailable to them. For queer youth in communities where their identities were not acknowledged or named, online access substantially altered near-total social isolation. Regulatory proposals affecting online content, such age verification requirements, platform liability rules, and filtering mandates, would make it harder for geographically isolated youth to learn more about who they might be.

See the whole series

Gray2009

Mary L. Gray: Out in the Country: Youth, Media, and Queer Visibility in Rural America. NYU Press, 2009, 978-0814731932.

Orenstein2020

Peggy Orenstein: Boys & Sex: Young Men on Hookups, Love, Porn, Loneliness, Vulnerability, and the Search for Something Real. Harper, 2020, 978-0062666987.

Paasonen2011

Susanna Paasonen: Carnal Resonance: Affect and Online Pornography. MIT Press, 2011, 978-0262551274.

Tarrant2016

Shira Tarrant: The Pornography Industry: What Everyone Needs to Know. Oxford University Press, 2016, 978-0190205140.