Photo illustration by Dylan Petrohilos

This Is The Way The War On Pornography Ends

In the heart of Washington, DC, in a generic-looking 11-story office building whose owners boast of its “high window ratio,” sits a 52-year-old tax-exempt organization named Morality in Media (MiM). It is perhaps the nation’s loudest voice against adult pornography. With a coalition that reads like a who’s who of conservative Christian organizations, the group is determined to get U.S. Department of Justice to enforce what it calls “existing federal obscenity laws” to crack down on “pornography and indecency.”

Their efforts have not been going very well.

Morality in Media's Washington DC office space

Morality in Media’s Washington DC office space

CREDIT: Josh Israel

In 2001 and 2002, Morality in Media received more than $1.2 million annually in contributions. By 2011 and 2012, that number dropped by almost half; it took in just $641,318 and $832,934. The organization’s reported federal lobbying has declined from $80,000 in 2003, to $60,000 in 2004, to less than $20,000 in 2005. By 2006, it had terminated its federal lobbying registration entirely. The organization’s funding appears to be heavily from socially conservative foundations, including the Knights of Columbus (at least $250,000 since 2010), hedge fund millionaire Sean Fieler‘s Chiaroscuro Foundation ($50,000 in 2012), and billionaire Philip Anschutz’s Anschutz Foundation ($30,000 in 2012).

And while MiM still has enough sway to get politicians to take a stance — in a 2012 campaign effort to get presidential candidates on record saying they would crack down on “the distribution of illegal, hard-core and obscene pornography,” the organization yielded commitments from GOP candidates including Mitt Romney, Newt Gingrich, and Rick Santorum — it is impossible to know how sincere their pledges really were: Romney accepted multiple contributions from people involved in the pornography industry. One supporter and adult film producer told Yahoo! News that he did not “see any danger coming from Romney when it comes to porn. It’s just not there.”

The group still tries to stay relevant. Last month, when Attorney General Eric Holder announced he would soon leave the Department of Justice, MiM responded with glee. “For the last 6 years, we have worked to try to get him to enforce federal obscenity laws – and thus to help curb sexual exploitation,” it lamented, but Holder “refused and even disbanded the task force appointed to do such cases.” On its Facebook page, the group’s president wrote posted “The resignation of Attorney General Holder can only give hope to those suffering the ravages of the pornography pandemic in America. Holder was all that stood between that pandemic and its destruction.”

It is true that Holder’s Department of Justice has not made prosecuting adult pornography a priority, and it is unlikely that anyone President Barack Obama appoints will share MiM’s priorities. Regardless of who the next AG is, MiM and other anti-porn advocates are very likely to be disappointed. The reason is simple: they have, for all intents and purposes, already lost their war. While public opinion remains divided on the morality of porn, the forces that would use the power of government to criminalize it have seen their cause become underfunded, usurped, unpopular — and quite possibly unconstitutional.

An Unusual Coalition

In the 1970s and 1980s, the anti-pornography movement was in its heyday. While religious conservatives like Jerry Falwell and Phyllis Schlafly actively fought against what they considered to be immoral materials, their movement was aided by some strange ideological bedfellows: feminists.

The two groups did not always agree on what was and was not obscene — some feminists, like Gloria Steinem, drew a distinction between pornography and erotica that would not likely have been embraced by the Schlaflys of the world — but found common ground and pushed for the government to crack down on hard-core pornography.

Nadine Strossen, a professor at New York Law School and a former president of the American Civil Liberties Union, has long worked in defense of the First Amendment rights, in areas including adult pornography. In 1994 she authored a book entitled Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. She told ThinkProgress that two women — Catharine MacKinnon and the late Andrea Dworkin — were the leaders of the “feminist anti-porn movement starting in late 1970s.” Their movement pushed to include anti-pornography laws in local civil rights ordinances in places like Minneapolis and Indianapolis. The laws were ultimately blocked on free speech grounds, which would put a major snag in the effort to push a legal crackdown. Still, Strossen says that this anti-pornography commitment was at the time “dominant among feminists and academics,” and that one “could count on one hand number of law professors speaking out on First Amendment grounds.”

Through the 1970s and 80s, the unexpected allies carried significant political punch. A commission recommendation calling for the legalization of adult obscenity was forcefully denounced by the U.S. Senate on a bipartisan 60 to 5 supermajority. Morality in Media’s then-president successfully pushed legislation in 1983 and 1984 to include pornographers under federal racketeering statutes. The 1984 Republican National Committee platform, for the first time, addressed the issue head-on: “We and the vast majority of Americans are repulsed by pornography. We will vigorously enforce constitutional laws to control obscene materials which degrade everyone, particularly women, and depict the exploitation of children. ” President Ronald Reagan, running on that platform, carried 49 states. And the newly re-elected president moved quickly to make good on that plank.

Meese ReportIn 1986, President Ronald Reagan’s socially conservative attorney general Edwin Meese led the Commission on Pornography to examine the societal impacts of pornography and to find “effective ways in which the spread of pornography could be contained, consistent with constitutional guarantees.” The commission recommended a federal crackdown. MacKinnon praised the report, observing: “For the first time in history, women have succeeded in convincing a national governmental body of a truth women have long known: pornography harms women and children.” The then-president of Morality in Media celebrated the findings as the “death knell for the criminal pornographic industry” and predicted that if the Department of Justice implemented its “major recommendation for aggressive enforcement of existing obscenity laws,” all “hard-core pornography traffic” would be “brought to an end within two years.”

But that did not happen, at all.

According to MiM, the federal government’s prosecution of obscenity laws slowed significantly in the 1990s under President Clinton. But while the drop from 42 prosecutions in 1992 to 7 in 2000 is statistically huge, it hardly demonstrates that it was a high priority under President George H.W. Bush either.

Around this time, American’s media usage was quickly being revolutionized by a new technological development: the World Wide Web. According to the U.S. Census Bureau, in 1997 just 18 percent of the nation used the Internet at home. By 2001, it was used by the majority of Americans — and as of 2011, the figure had surpassed 71 percent. Instead of listening to records, tapes, or even compact discs, people could download them via Napster or iTunes. Instead of TV shows on broadcast television or renting movies from video stores, they could stream them on-demand. And instead of having to subscribe to magazines mailed in plain brown envelopes or watch VHS tapes obtained in back rooms, they could access nearly any type of porn, at any hour, online.

The Nation‘s Katha Pollitt succinctly describes the largest challenge facing those who want to control pornography: “The Internet has made it even harder to control porn than it was back in the days of books and videos,” she told ThinkProgress. “And basically, porn has gone mainstream — it’s everywhere. It’s very popular.”

Morality in Media quickly recognized this as a problem for their cause. As the internet was gaining prevalence in the mid-90s, the group called on Congress to “control ‘cyberspace’ to prohibit obscenity entirely, irrespective of a commercial purpose and irrespective of whether ‘consenting adults only’ are involved, and to restrict indecency.” Congress struggled to find a constitutional way of doing so.

In 2001, President George W. Bush appointed socially conservative former Sen. John Ashcroft (R-MO) to be his attorney general. Ashcroft, who made headlines early on in his tenure for spending thousands of federal dollars to cover up the breasts on the Spirit of Justice statue and the groin of the Majesty of Law statue in the Department of Justice’s Great Hall, attempted to make aggressively prosecution of obscenity a priority for the DOJ. His initial efforts got sidetracked as the department focused on terrorism after the 9/11 attacks and little came of subsequent efforts during Bush’s tenure. In 2011, Attorney General Holder disbanded the George W. Bush-era Obscenity Prosecution Task Force, folding it into the Child Exploitation and Obscenity section. Morality in Media launched an unsuccessful campaign to get Holder to vigorously “enforce existing U.S. obscenity laws” and repeatedly included him in its “Dirty Dozen” list of top “facilitators of porn in America.”

According to data provided to ThinkProgress by the Department of Justice, in fiscal year 2013, more than 2,300 defendants had federal cases filed against them for child exploitation — but just 60 were charged in obscenity-related cases.

Today, MiM’s fundraising has slowed and its coalition against illegal pornography is almost entirely made up of social conservatives. Last month, the group shared an article on its Facebook page. The piece noted that while only 1 in 5 adults said in 2000 that they’d ever visited a sexually-oriented website, a recent poll commissioned by the anti-pornography Proven Men Ministries found that “64 percent of American men and 20 percent of women view pornography at least monthly,” including 55 percent of Christian men.

The Lost War For Feminsts

The small band of anti-pornography feminists still working on the issue has mostly focused its efforts on education, rather than legal action. But Neil Malamuth, a professor of communications and psychology at UCLA who has written extensively about pornography and its effects, told ThinkProgress that their “battle has been largely lost” due to a “confluence of multiple factors… technological and political.”

The nation’s widely acknowledged leader of the feminist anti-porn movement is a Wheelock College professor of sociology and women’s studies named Gail Dines. An English native and self-described Marxist, Dines heads a tax-exempt organization called Stop Porn Culture. The organization, which has not reported raising more than $50,000 in any year since its 2007 founding, believes that pornography is “misogynistic both in its production and consumption,” and works to challenge the industry and culture.

To Dines, the Internet has made the problem of pornography, “incomparably worse.” She told ThinkProgress that the web “allows for anonymity, affordability and access,” and believes that was quite intentional. “A lot of people believe the Internet drove porn,” she added, but, in fact, much of the research and development for today’s technology was “driven by the porn industry.”

UCLA’s Malamuth noted that this has created something of a paradox for the anti-porn forces. For years, he said, opponents warned that “one of the terrible things, from their perspective, about pornography was that if you have a lot of exposure to it, you start to see it as largely harmless. To them, that’s a very negative thing, because they see it as harmful.” But, he explained, “people who are pro-porn look at the same phenomenon and data and say, ‘yeah, people realize it’s not such a big deal.'” Whether one considers that evolving view a “negative desensitization” or an “awareness effect,” as he sees it, “the conclusion is the same and it’s much more difficult to organize” a broad campaign in an age where the Internet provides “so much exposure, virtually to anyone, at any time, in any way, in any context.”

The numbers bear this out. Despite federal and state obscenity laws, pornography of virtually every type is now ubiquitous and largely unabated on the Internet. Even conservative estimates suggest 14 percent of all searches are for adult material.

Still, not all academics agree with Dines’ assessment that porn is a bad thing for women. Constance Penley, a professor of film and media studies at the University of California, Santa Barbara, has taught a course on the pornographic film since 1993. She told ThinkProgress that soon after she began teaching the course, Pat Robertson denounced it on his 700 Club as “a new low in human excess.” The anti-porn televangelist expressed shock that a feminist would be taking on such a subject, observing that “a feminist teaching pornography” was “like Scopes teaching evolution!” In The Feminist Porn Book, Penley wrote that for many years, “the popular perception of feminism” was “that it is one and the same with the anti-porn movement,” even if it meant merging “with the forces of the religious right and conservative thinking about women and sexuality.” And she told ThinkProgress that “one of the worst deals feminism ever made” was getting “in bed with the Christian right around pornography.” But, she notes that while Gloria Steinem and a few other feminists still are vocally opposing pornography, the numbers have significantly declined.

Gail Dines herself observed that much of the feminist community has abandoned her cause and embraced what she called “neo-liberalism.” “I remember when you could count of most feminists to be anti-porn,” she recalled, lamenting that “the majority of women’s studies books on porn [are now] sympathetic.” Rather than focus on collective liberation for underprivileged classes, she observed, many feminist academics now talk about “individualist empowerment.” In other words, rather than focusing on protecting those with the least power in society, she believes the current wave of feminists want to leave it up to individual women to make their own choices — but also fend for themselves.

Gail Dines

Gail Dines

CREDIT: Creative Commons/Marty555

She said that her organization is purely an educational effort, trying to “build up educational awareness as to the harms of pornography,” teaching people that it is a threat to public health. The group does not even attempt to push for a legal approach because, she explained, “in this country, I don’t think we’re there yet.”

The anti-porn feminists in the 1970s and 80s did think that the nation was ready for a crackdown and it not only created challenging legal precedents for the future, but also split the movement. Carolyn Bronstein, author of Battling Pornography: The American Feminist Anti-Pornography Movement, 1976-1986 and associate professor at DePaul University, believes that the failures of MacKinnon and Dworkin’s legislative approach in the 1980s were also a big part of the decline of feminist involvement in the cause. When the Supreme Court effectively rejected the idea that adult pornography could be classified as a violation of women’s civil rights, she told ThinkProgress, “there wasn’t much left of that consciousness-raising movement that had existed” and the feminist anti-porn “movement fizzled because there wasn’t anything to try for.” And, she said, another very active segment in the women’s movement became concerned that “any time you squelch sexual imagery, the first type that will be marginalized is feminist expression, gay and lesbian expression, and sexual minority expression.”

Susan Brownmiller, another feminist who has been outspoken against pornography and best-selling author, told ThinkProgress that Dines (who she calls “heroic”) appears to have been left as “a kind of one-woman show,” because, today “women don’t know how to fight” pornography in the Internet age. The women’s movement went through a “very difficult battle” on the topic in the 1980s, she said, and it “really separated people.”

While the anti-porn feminists were dispirited and divided after their political strategy sputtered, feminists who saw such a crackdown as censorship worked to put a positive spin on things.

“The anti- anti-pornography people were very clever,” Brownmiller recalled, devising the slogan “pro-sex feminists.”

One of those “pro-sex feminists” is Clarisse Thorn, author of the book The S&M Feminist. She believes the “sex positive” position has largely prevailed in feminist culture, but that has brought new challenges. She told ThinkProgress that the lack of labor protection for underprivileged worked in the porn industry as a “real problem,” observing, “if this is what we get out of winning, I’d like to know what losing feels like.” But rather than ban pornography, she would like to see everyone focus on combating exploitation in pornography by combating all exploitation in the workplace.

Three Prongs

Historically, attempts by the government to prohibit activity on the Internet have also been less than successful. As states restricted gambling, users simply took their business to off-shore casinos.

But, several experts agreed, the explosion of Internet porn availability and its popularity has likely had another profound impact on the “war on illegal pornography.” It has quite possibly made it unconstitutional.

The constitutional law precedents regarding adult pornography and the First Amendment in the United States are a complicated olio that often leave more questions unanswered than not. Justice Potter Stewart famously struggled to define what qualified as pornography, writing, “I know it when I see it.” But generally speaking, obscenity laws are evaluated by a three-pronged test established in the Supreme Court’s 1973 Miller v. California ruling. The gist of the court’s decision was that to determine whether material was protected by the First Amendment, one must consider “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Nadine Strossen

Nadine Strossen at a 1998 press conference

CREDIT: AP Photo/H. Rumph, Jr, file

The first prong of that test means that, in order for something to be legally obscene, it must be outside of the standards in a given community. Nadine Strossen, former head of the American Civil Liberties Union and a professor at New York Law School, told ThinkProgress that in today’s world, it is increasingly difficult for a prosecutor to make the case that much of anything satisfies that requirement. “It’s harder and harder to get convictions,” she explained, because “in the Internet age, people are able to look at this stuff.”

While once it was possible for the Department of Justice to use “forum shopping” — bringing obscenity charges in especially conservative communities — she notes that “even in Provo, Utah people are being let off the hook.” She notes that with “what’s available on TV, getting created, getting watched,” and getting sponsored, it’s clear that this stuff is not “patently offensive.” And, she says, that is bad news for those who sincerely believe that pornography is harmful: “I feel sorry for someone who believes this stuff is corrupting society, because they would have to now say, ‘society has been corrupted.'” In 1983, she added, a federal judge held that “the community standards in New York are so low nothing is obscene.” Given the Proven Men Ministries poll, it may well be that that is now true for the United States as a whole.

Strossen also noted that the Supreme Court’s 2003 Lawrence v. Texas decision, which struck down state sodomy laws, included a rationale that criminal laws may not be based only on community sense of morality. In his dissent, Justice Antonin Scalia wrote that state laws against things like same-sex marriage, masturbation, fornication, and obscenity “are likewise sustainable only in light of [the Court’s now-abandoned Bowers v. Hardwick] validation of laws based on moral choices,” and that “every single one” of those laws would be called into question by the Lawrence decision.

After the landmark 1972 film Deep Throat came out, distributor Anthony Battista was among those prosecuted by the federal government for violating federal obscenity statutes. His daughter, Kristin Battista-Frazee, has written extensively about her life as The Pornographer’s Daughter. Like Strossen, she doesn’t believe a similar conviction would be successful nowadays. “I think it would be extremely difficult for a president to argue adult porn is outside of a norm for our entire nation,” she said, “because our country is so diverse” and “the Internet blurs community.” Or, as First Amendment scholar and University of Virginia professor David M. O’Brien told ThinkProgress, “The Internet simply overwhelmed the law.”

Strossen points to one other major factor that has made the war unwinnable for those who want to ban pornography in America: the nation is far less puritanical today than ever before. “There is a pro-sex culture among the young,” she said, and “Sex and the City is nothing compared to Girls, in terms of how sexually vivid it is. I think there is just a Will & Grace-ing of sexuality in all of its guises.”

This evolution can been seen in growing popular support for birth control, same-sex marriage, and gay and lesbian relationships.

UCLA’s Malamuth observed a “general shift, in terms of moving away from traditional Judeo-Christian beliefs that anchored a lot of perspectives on the topics of gender, sexuality, and homosexuality.” And, he noted, the issue has become less important to people in public discourse and the media: “It used to be, we’d publish a study and it would sometimes get major coverage in all newspapers across the country, there’d be a lot of controversy, and we’d get calls. Now, no matter what the findings, it seems to not be of much interest to anyone.”

These studies, Malamuth said, showed that the anti-pornography movement’s “boogeyman approach” of arguing “massive societal damages” from pornography simply were not documented. “For the majority of men, we don’t really find any negative effects [from viewing pornography] and even find what they consider positive effects,” he explained, though he did note that “for a small, but important minority [of] men,” porn can have negative effects.

DePaul’s Carolyn Bronstein pointed out that for those men “already given to aggressive behavior,” violent porn “can tend to increase their likelihood to act violently.” But, she said, while anti-pornography activists in the 1980s very much hoped “to prove that watching porn would lead your average man to rape, nobody’s ever been able to establish that.”

“One of the things that I think so works against them,” Constance Penley of University of California, Santa Barbara, agreed, “is their descriptions of pornography is that it is a ‘pandemic’ public health problem,” when “they’re describing something that people actually can see for themselves.”

Where We Stand

Constance Penley said that while “it has just become impossible to prosecute pornography for obscenity,” opponents have turned their focus to “nibbling away at the industry through other measures.” Much like abortion opponents have attempted to regulate providers out of existence by using targeted regulations (known as “TRAP laws”), she said, Dines and other anti-porn activists are now pushing to require condom use by pornography actors and expanded recording-keeping for producers.

While Morality in Media did not respond to repeated inquiries from ThinkProgress for this story, some of its coalition members did. John Foubert, a professor at Oklahoma State University and a self-described “social conservative,” said that he is “doubtful of an impending tidal wave of limiting the porn industry, but stranger things have happened.” He held out hope that under a Republican president, “it is quite possible that we could see a tide turn against porn,” which “would be good for all of us.”

Carolyn Bronstein seems some hope for the organization if it sticks to consumer pressures rather than legal avenues. “They have more luck with consumer-oriented pressure campaigns, trying to pressure places like Walmart or 7-Eleven not to carry Playboy or Hustler. Their sweet spot is going after large retailers who are afraid of consumer boycott [and] they can organize a fair number of consumers,” she observed, “But they aren’t gonna be able to pass laws or get new laws enforced.”

Even after losing the war, it is clear that Morality in Media and supporters of a government crackdown on pornography will soldier on. As Lynn Comella, associate professor of women’s studies at the University of Nevada, Las Vegas, told ThinkProgress: “As long as pornography exists there will be groups that oppose it and devote enormous amounts of energy to eradicate it. That much, history has taught us.”

But Nadine Strossen said she believes the effort to legally stop adult pornography “is a fairly dead issue. Morality in Media won’t go away, but I don’t think they’ve gotten any traction.”

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