Limiting free speech? The Church’s response to pornography Thomas Kincaid February 26, 2016 Commentary Last November, the United States Conference of Catholic Bishops (USCCB) issued “Create in Me a Clean Heart: A Pastoral Response to Pornography.” In that document, the bishops observe: While the production and use of pornography has always been a problem, in recent years its impact has grown exponentially, in large part due to the Internet and mobile technology. Some have even described it as a public health crisis. Everyone, in some way, is affected by increased pornography use in society. As a pastor, I can only comment anecdotally on the pervasiveness of pornography in the lives of the faithful. That said, it seems a nearly universal struggle for all men who grew up in the Internet age (so all men presently younger than 40) and an increasingly common struggle for younger women, as well as men and women of all ages. The key to appreciating the bishops’ claims and broader questions about pornography in the United States as a “public health crisis” is this: The Internet has fundamentally changed the nature of pornography in our society. As Scott Flanders, CEO of Playboy Enterprises, put it last October when announcing the end of Playboy’s nude photography, “You’re now one click away from every sex act imaginable for free. And so [nude photos are] just passé at this juncture” (Ravi Somaiya, “Nudes are Old News at Playboy,” New York Times, Oct. 12, 2015). It is hard to overstate the disparity of the cultural impact between the former situation of Playboy (and other publications), providing nude photos to those who venture to the dark side of a newsstand and the streaming video pornography of essentially any sort available in the privacy of nearly every home in the country. Advertisement In “Create in Me a Clean Heart,” the USCCB correctly points to life in Christ as the only full solution to individual and collective struggles with pornography. Indeed, only Jesus saves. But given our commitment as Christians to the common good (including to public health), it may be time to explore whether we ought to be calling for a broader and more immediate solution. Just as the Church relies upon the State to protect us from the evils of war and other forms of violence while recognizing that only in the eschaton does peace completely prevail, the violent pervasiveness of pornography in the Internet age may warrant further deliberation upon what sort of state action might be possible to stem the tide of this crisis effecting so many citizens — Christians and non-Christians alike. My question is this: should the Church, advocating for the common good within the wider society, call for reevaluation of existing legal standards regarding free speech and obscenity in light of the crisis created by the pervasiveness of Internet pornography? * * * Advocating a limit on First Amendment freedoms is always dangerous for religious people, and, generally, we ought to be at the forefront of defending those rights. But no rights are absolute. Rather, all legal rights are weighed against other rights and the reasonable expectations and desires of citizens. In this situation, the public health impact (measured in the rates of birth, divorce, domestic violence, poverty, and the abuse of women and children) may raise questions about previously protected pornographic speech, in which speech includes words, images, movies, and so forth. Two caveats will soon become obvious: First, I’m making claims in this post about the significant societal impact of Internet pornography without spending much time on the hard data in support of my point. I’m basing this alarm on pastoral experience, not academic sociological research. But, for those who are interested in a quick snapshot, National Public Radio published a helpful collection of peer-reviewed (and non peer-reviewed) statistics on the detrimental effects descending on a nation gripped by pornography. Second caveat: I am not a legal scholar. I’m simply raising questions, hoping other more qualified scholars and advocates will begin to address these issues that have become obvious to me in the past decade of pastoral ministry. With those two caveats, it seems that a brief survey of the legal possibilities for limiting pornographic speech requires consideration of the Miller Test (the current legal standard for determining if speech is obscene to the point of not being protected by the First Amendment), the Brandenburg Test (the current legal standard for determining if speech is not protected because of public safety concerns), and the Schenck Test (the previous legal standard, replaced by Brandenburg, for determining if speech is not protected due to public safety concerns). Established in the 1973 case Miller v. California, the Miller Test allows for the governmental limitation on speech if three criteria are met: Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Miller Test, while interesting to the question of this post, may not address my concern directly. For the question is not if Internet pornography is especially obscene (the question Miller addresses) and therefore ought to be restricted. My question is whether the advent of the Internet’s distribution of pornography (not defined as obscene by Miller) requires us to reevaluate free-speech protection given to pornographic speech. Thus, I want to consider the other two tests, stemming from two landmark free speech decisions, the 1969 decision in Brandenburg v. Ohio and the 1919 decision in Schenck v. United States. Brandenburg v. Ohio created a new test, replacing the criteria from Schenck v. United States. Specifically, the Court in 1969 stated: The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. While the USCCB helpfully reminds us that “pornography use also has direct connections with sins such as adultery, domestic violence, the abuse of children … … and sex trafficking,” the “imminent” requirement in Brandenburg v. Ohio likely limits applicability to our question. Several of those sins are illegal under statute law in most states, but pornography usually does not lead immediately to these “lawless action[s].” Digging into the Schenck test, however, may prove more fruitful. In one of the more oft-quoted Supreme Court opinions, Oliver Wendell Holmes, Jr., wrote for the majority: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.  Pornography has always been a danger to public health and the common good, but the issue now concerns the “proximity and degree” of these substantive evils. It is now a rampant problem, crossing social and economic divides. It aggressively endangers children, teens, and adults; it disables marriages; it harms procreation; it preys upon women by dehumanizing their bodies (as Andrea Dworkin pointed out here in 1993); and the economic disparity between porn performer and porn consumer should cause further alarm. This epidemic is already well entrenched in our culture. But I wonder if this new delivery system requires us to re-weigh previously determined balances between competing rights and social goals. Even if we all agree that our desire not to limit speech necessitates legalized pornography, the Internet as a delivery system for pornography dramatically changes the proximity of that pornography to our lives (namely, it comes straight into our homes) as well as the degree of its impact (namely, the variety, quantity, is so nearly limitless that it has fundamentally changed the industry). * * * For the Christian, the USCCB is obviously correct: Only Jesus provides the final solution to this problem. But should we be advocating protection for our fellow human beings as we await their conversion or his return? And even if this post’s suggestion isn’t the way to go, it’s time for people of good will to come together not first around religious or moral questions of pornography, but around concern for the common good all aiming to stem the tide of this clear and present danger to our world. Other posts by Thomas Kincaid are here. Featured image via John Thorne.  U. S. Supreme Court Majority Opinion in Miller v. California (1973).  U. S. Supreme Court Majority Opinion in Brandenburg v. Ohio (1969).  USCCB, p7.  U. S. Supreme Court Majority Opinion in Schenck v. United States (1919). Leave a Reply Cancel ReplyYour email address will not be published.CommentName* Email* Website Notify me of follow-up comments by email. Notify me of new posts by email. Δ This site uses Akismet to reduce spam. Learn how your comment data is processed.