How to Re-establish Civilized Sexual Morality
The United States has re-established a dual-track approach to obscenity regulation. Adults have mostly unfettered access to pornography on the internet and elsewhere, while states can gingerly limit children’s access to internet pornography. Such a legal approach to pornography, however, is ultimately unsustainable and uncivilized. General obscenity statutes applied to adults need to be revived across states and at the national level.
More than two dozen states have passed age verification laws since 2022. These laws, which the Supreme Court blessed in Free Speech Coalition v. Paxton (2025), require porn sites to confirm that users are over the age of 18 to access content. Such laws have forced major sites like Pornhub to pull out of affected states. This is not nothing, though it is not enough in the final analysis.
Paxton revives a line of cases dating back to the late 1960s. In Ginsburg v. New York (1968), the Court created an “obscenity as to minors” track to allow states and localities to regulate porn shops under looser standards. Later, the Court allowed the FCC to keep obscene speech off the radio to protect children (FCC v. Pacifica, 1978) and blessed local zoning laws that prohibited adult bookstores from places like school zones and residential neighborhoods where children were likely present (Renton v. Playtime Theatres, 1985).
While the Court allowed protections for children, adult access to pornography was largely deregulated, first with loose laws and then with lax enforcement. The Supreme Court’s landmark decision in Miller v. California (1973) established a test for identifying permissible obscenity regulation. States could only ban obscene material (1) when the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) when a work depicts, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) when a work “taken as a whole, lacks serious literary, artistic, political, or scientific value.” The upshot of Miller, as Justice Warren Burger intimated, was that softcore porn was deregulated, while hardcore porn could still be outlawed.
Miller echoed through more than two dozen states, all of which passed laws codifying the Supreme Court’s redefinition of obscenity. Idaho, for instance, passed a bill in 1974 that made it illegal to sell or possess obscene materials defined as works that are “patently offensive to prevailing standards in the adult community” and do not, when “considered as a whole, and in context in which it is used,” possess “serious literary, artistic, political or scientific value.” California, New York, Illinois, Texas, and Mississippi enshrined similar definitions in law.
Federal prosecutions for conveying obscene materials through the mail continued after Miller, but tapered off significantly after the 1980s to under 100 per decade as “community standards” degenerated. State prosecutions under Miller-informed laws trickled in, but essentially vanished in the 2000s.
Meanwhile, the loose Miller standard and lax enforcement collided with the World Wide Web to create a flood of internet pornography. Congress passed laws trying to extend elements of the dual-track regulatory scheme (anything goes for adults; some regulations for children), but the courts shot them down in 1997 and 2004 as being overbroad, violating the First Amendment, or not being the “least restrictive” means of accomplishing the goal. Meanwhile, the Bush administration started an Obscenity Prosecution Task Force in 2005 that led to about 100 prosecutions for the distribution of obscene materials even among adults, but President Obama shuttered it in 2011 after mobile devices became widely available.
As a result, America has experienced essentially two decades of unregulated access to pornography. Pressure to re-impose elements of the dual-track approach became overwhelming as the harms associated with pornography became too obvious to ignore.
Ignoring the flood of unregulated internet pornography for adults, states have built new dikes to protect children. Age-verification laws arose. Many states beefed up statutes to protect children from participating in the making of pornography. Every state established an Internet Crimes Against Children Task Force program, which concentrated on curbing the production and distribution of online child pornography and sending obscene pictures digitally. Nearly every state has a designated task force for child sex trafficking. Nine states have had more than 100 prosecutions from the internet crimes task forces since 2020, while six have had over 100. Only 16 states have 20 or fewer convictions from their internet crimes task forces since 2020.
Meanwhile, no state has an Obscenity Prosecution Task Force to enforce its general obscenity statutes, which largely remain unchanged since the Miller revision. State prosecutions under general obscenity laws are near zero. In the 15 most conservative states in the union, I found only seven total prosecutions under general obscenity statutes since 2020 (two in Idaho, two in Ohio, two in Louisiana, and one in South Carolina). National efforts fell into desuetude after the Bush Task Force ended.
When states legalized medical marijuana, police had fewer incentives to enforce any laws against marijuana distribution. District attorneys are less likely to bring cases if police enforce the law. The same goes for porn. Enforcement of obscenity is generally disincentivized. As convictions are more difficult to secure, police deemphasize policing obscenity. Legalizing softcore porn makes it harder to enforce laws against hardcore porn. Failing to enforce the law against hardcore porn leads to ever harder-core porn.
Support for enforcing laws that protect children, while perhaps sufficiently strong today, will probably wane under the dual-track scheme. Adults who access hardcore pornography will end up being much less willing to enforce laws protecting children and other innocents. As political scientist Harry M. Clor wrote in 1969, it is not clear “that laws confined to the protection of children could adequately protect them in the absence of any restrictions upon the adult world.” As studies and common sense show, rape and the exploitation of children do not trouble adults who consume hardcore pornography on the internet as much as those who do not. No society can afford to take its opposition to childhood pornography for granted by tolerating all sorts of pornography everywhere.
Hardcore porn viewing leads to callousness and political views that erode civilized laws protecting women and innocents, which are thought to be too harsh or not worth the pain. Few really appear innocent to gooner consumers.
What is inappropriate for children cannot be entirely appropriate for adults. The free circulation of pornography–hard- and soft-core–will lead, over time, to the belief that nothing is wrong with it. The values implicit in hardcore pornography become tolerated, normalized, and then welcomed. Adults who consume lots of pornography come to think that public standards have changed or that no public standards exist.
Public opinion and behavior are ever more permissive with the proliferation of porn. Majorities still wanted total bans on pornography in the early 70s, though numbers steadily declined until by 2020, when less than a third supported bans, according to Gallup. Numbers finding pornography “morally wrong” have also steadily declined. The dike opposing childhood access to porn will not hold back the flood. Consider this: 29 states do not currently have age verification laws, covering two-thirds of the American people.
States should therefore renew efforts to enforce general obscenity statutes.
Legal Updates. Nearly all of the examples of obscene acts in state law come verbatim from Justice Burger’s Miller decision. Current definitions were often drafted when books and magazines were primary vehicles for obscenity. The internet changed all that, so the law must apply the same principles to new circumstances.
Definitions of prevailing community standards must be updated to include predominant themes from internet pornography. Following Florida’s set of definitions, states might add descriptions of deviant sexual intercourse, female genitals, masochism, nudity, sadism, sadomasochistic abuse, sexual battery, sexual bestiality, sexual excitement, specific sexual activities and exhibitions, and so on, as to capture the full range of internet porn depictions. Nothing should be left to generalities when it comes to defining what depictions violate community standards.
Extensive definitions make it easier for investigators and prosecutors to identify violations. States should deal with the issue of live-camera sexual performances, perhaps under prostitution statutes. Furthermore, states will have to adopt measures to grandfather some internet porn out of the law, giving producers and distributors time to make a good-faith effort to remove pornography from the internet. All these definitions are consistent with Miller’s ban on hardcore pornography.
Dedicated Staff and Funding for Task Forces
Enforcement of obscenity statutes must be handled at the state level, since most counties lack resources, personnel, and expertise to regulate general obscenity. Several states should pilot “An Obscenity Regulation Task Force” (akin to the Bush administration’s task force at the national level) to enforce clarified-Miller state laws. Perhaps even a consortium of states could conduct joint investigations of the pornography outfits, big and small. Hiring sufficient numbers of investigators and prosecutors and giving direct authority to enforce state obscenity laws is a sine qua non to any successful anti-porn policy.
Those who promote this new censorship regime will be ridiculed among Progressives and anti-Christians. Just as ICE agents are targets, so will agents seeking to enforce obscenity regulations be slurred for Comstockery and censorious prudery. Thus, states must not only pay their investigators and prosecutors well but also honor and be loyal to them, which are coins in this realm. Governors and attorneys general must hold press conferences and take to social media to defend the importance of general obscenity regulations, support investigators and prosecutors in their endeavors, and remind the public of the stakes.
Pornography now shapes the sentiments and attitudes of many adults, which is bound to erode civilized sexual morality. Fidelity is already questioned among those who watch porn, as is marriage. Divorce is thought to be normal—and even wholesome. Homosexuality and polyamory are more accepted among those who consume internet pornography.
In such an environment, other pillars of civilized sexual morality are bound to be strained and to collapse. Things like cousin marriage, incest, sexual violence and abuse, bestiality, necrophilia, and demands to lower the age of consent. Taking the rather pitiful Miller standards seriously is a start toward reestablishing a more civilized sexual morality. Enforcing civilized standards as opposed to “prevailing” or contemporary standards will be necessary to finish the job. First things first.
