Regulating Obscenity Has Never Worked, Why Do We Think it Will Work Now?

Photograph Source: Thai Civil Rights and Investigat (TCIJ) – CC BY 2.0

Censorship is censorship no matter the intention behind it.

While there’s plenty of abhorrent material on the internet that no one wants to defend, creating laws — or worse — a bureaucracy to find and remove such content will likely lead to mission creep, ideological capture, or just plain inefficiency. This has been true of every government obscenity ban throughout history, and there’s no reason to believe calls to ban free pornography will turn out any different. Porn regulation should be left to the private sector.

Yet following the controversial OnlyFans explicit content ban and its subsequent reversal, there are increasing calls for the federal and state governments in the US to moderate content. It’s a bit illogical, given OnlyFans’ removal of explicit content was motivated by private sector pressure (particularly from financial institutions). If people think OnlyFans gets it wrong, don’t for a second believe that any government, State or Federal, will get it right.

Censorship is a slippery slope. Once one form of expression is banned, others soon follow. This is the case wherever governments have attempted pornography regulations.

It starts with the removal of all non-consensual pornography, such as laws that require the removal of revenge porn. But then there is mission creep, and all pornography that merely appears to be non-consensual is captured, such as bans on Japanese Hentai.

It seems reasonable enough: Some Hentai is totally abhorrent, depicting rape, incest, and child sexual abuse. Who wouldn’t want to ban that? But this mission creep is how you end up with laws like the Australian one that inadvertently banned small boobs.

Yes, you read that right, and no, it’s not a joke.

The law was supposed to ban child pornography or anything that resembled child pornography. But that definition was so broad it banned all petite females from acting in adult films. As a petite woman myself (and an Australian) it’s lucky my calling in life is not to produce adult content. That career option has been closed off to me by dint of these laws.

Even if the laws themselves were kept within strict boundaries so as to target only the worst of what’s on the internet, any bureaucracy created or empowered to be the porn police will do so based on their own prejudices and ideas about porn.

If people on the right side of the aisle think that such a department is going to be stacked with social conservatives — you’re dreaming! More likely it will be filled with the people that advocate for pornography literacy programs for 8-year-olds.

Then there is the problem of enforcement.

Throughout history, governments have had little success regulating obscenity when it was on paper or even video cassette. We couldn’t even keep books like Lady Chatterley’s Lover and Lolita out of the hands of eager readers. Why do we think we have a chance of putting the lid on the World Wide Web?

If there is one thing conservatives should be thanking Silicon valley for it’s the pornography moderation policies and software they have developed.
All the major platforms such as Facebook and Instagram find, remove and report to authorities an enormous amount of child exploitation materials. According to Facebook they use “artificial intelligence and advanced software” and remove it “before users can ever see it.”

Each of the big platforms has a different pornography policy depending on its ethos and audience from the more tame Instagram, which removes all manner of sexual content, to the very liberal Twitter which enables the promotion of sexual services.

Where moderation of obscene content is mismanaged, these platforms pay with their reputations. Just recently PornHub was embroiled in a scandal when it was uncovered they permitted the upload of videos with underage and sex trafficked actresses.

Finally, regulation or consumption of obscenity should be a matter for the private sphere. The problem with porn is not a legal problem, neither should it ever be. Porn production is dictated by culture — if it gets money and views, then it gets made. If people don’t like it, they need to vote with their dollars and eyeballs and neither watch it nor sponsor it.

No regulation in this area is ever going to be 100% effective. As such there will always be a place for ethics. Instead of creating these laws that will be subject to mission creep and the whims of government departments, people need to find a way to navigate the new world of internet pornography in a way that accords to their values. Whether that means paying for it, going to a feminist porn site, or not watching it at all.

However people relate to pornography, it is a matter that ought to be addressed privately, rather than by laws that will affect everyone.

Dara Macdonald is a contributor for Young Voices, an admitted Australian lawyer, and founder of a new organisation that aims to create a culture of freedom, All Minus One.


Dara Macdonald is a contributor for Young Voices, an admitted Australian lawyer, and founder of a new organisation that aims to create a culture of freedom, All Minus One.